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Commissioner of Central Excise, Tamil Nadu Vs. M/s. Southern Structurals Ltd | is required to be reduced to Rs.11,50,000/-.ORThe appeal is required to be allowed both on merits and on time bar in the light of judgments noted by Member (Judicial) Shri S.L. Peeran in his order." 15. The third Member being Member (Technical) agreed with the Member (Judicial) and after referring to the similar issue decided by the Assistant Commissioner vide order no.71/96 mentioned above, held that it could not be validly said that the facts were suppressed. He, therefore, held that the demand was time barred.16. On the inspection charges he held that the same are includible in the assessable value. Hence, he agreed with both the members on this point. He, therefore, allowed the appeal on merits and held that the demand was time barred and set aside the order of the Commissioner.17. Accordingly, by a majority of 2:1, the appeal of the assessee was allowed.18. Aggrieved, the Department has come up in appeal before us. 19. It is clear from the above that on the point of inclusion of inspection charges in the assessable value, all the three members have given a common finding that the said charges are to be includible in the assessable value. It is stated that the assessee has not filed any appeal on this point. Thus, the order of the Tribunal has attained finality in this regard. 20. So far as the payment of differential duty on escalation bill is concerned, the assessee in reply to the show cause notice has admitted its liability to pay the said duty and the same has already been paid and pursuant to the finding of the Commissioner, the same has been appropriated against this liability. Tribunal has also recorded the same. There is no dispute on this point also. 21. So far as the interest on advances received from the Railways is concerned, by a majority of 2:1, it has been held that the advances received and the price were in full knowledge of the Department which is clear from the order in original no.71/96 dated 15.10.1996 wherein the Assistant Collector has noted about the advances received and has also held that the advances received had no nexus with the contract and dropped similar proceedings. 22. By the majority view, the Tribunal has also held that since the facts regarding receipt of advances were already in the knowledge of the Revenue it could not be said that there was suppression of facts regarding advances received warranting invocation of extended period of limitation. The finding regarding limitation has not been specifically challenged by the Revenue in this appeal. Even otherwise, we agree with the Tribunal that since the fact regarding advances received was already in the knowledge of the Department and the earlier similar proceedings initiated by the Department were dropped by the Assistant Commissioner, the Revenue was not justified in invoking the extended period of limitation. We confirm the finding of the Tribunal on the point of limitation and hold that the Revenue was not justified in invoking the extended period of limitation. Insofar as the under-valuation on account of advances received but not included in the assessable value is concerned, suffice would it be to say that the point is concluded against the Revenue and in favour of the assessee by a judgment of this Court in the case of Commissioner of Central Excise, Mumbai III v. ISPL Industries Ltd. (2003) 5 SCC 113 in which it has been held as under : "It is clear that the mere fact of making an interest-free advance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the Revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods. There may be different reasons for taking advances, as indicated above in the earlier part of this judgment. Learned counsel for the appellant submits that all that the Revenue has to show is that interest-free advance has been made by the buyer to the manufacturer which would lead to a presumption that it is to the advantage of the manufacturer having influenced the fixation of price as well. We, however, fail to appreciate the submission made on behalf of the Revenue for drawing a presumption that fixation of price is influenced by such an advance. In this connection, we may refer to the Boards circular of 1998 quoted earlier, clause (iii) of which clearly provides that if there is no difference in the selling price for both categories of the wholesale buyers and there is also no proof that on account of advance deposits taken from some buyers, the price charged from all buyers has been reduced, then the element of notional interest on advance deposits, cannot be added. Obviously, where there are two prices, one for those who have made the advance and the other who have not, it would require no further proof of the lower price having been influenced by the interest-free advance made by the buyer. But otherwise it would require proof and the proof for the purposes of holding that interest-free advance has influenced the price would obviously be provided by the Revenue. There is no scope for any such presumption as canvassed on behalf of the appellant. We find the same position to be continued in the later amendment in the Rules of 2003 referred to above. As in Illustration 2, it talks of evidence to show that interest-free advance has resulted in lowering of the prices. The departmental circulars and the amendments in the Rules at the relevant time and subsequently too, do not envisage of any presumption to be drawn by the mere fact of interest-free advance by the buyer to the manufacturer. It requires proof and evidence to show that fixation of price has been influenced on the lower side by such a transaction of interest-free advance." | 0[ds]22. By the majority view, the Tribunal has also held that since the facts regarding receipt of advances were already in the knowledge of the Revenue it could not be said that there was suppression of facts regarding advances received warranting invocation of extended period of limitation. The finding regarding limitation has not been specifically challenged by the Revenue in this appeal. Even otherwise, we agree with the Tribunal that since the fact regarding advances received was already in the knowledge of the Department and the earlier similar proceedings initiated by the Department were dropped by the Assistant Commissioner, the Revenue was not justified in invoking the extended period of limitation. We confirm the finding of the Tribunal on the point of limitation and hold that the Revenue was not justified in invoking the extended period of limitation. Insofar as theon account of advances received but not included in the assessable value is concerned, suffice would it be to say that the point is concluded against the Revenue and in favour of the assessee by a judgment of this Court in the case of Commissioner of Central Excise, Mumbai III v. ISPL Industries Ltd. (2003) 5 SCC 113 in which it has been held as underis clear that the mere fact of making anadvance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the Revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods. There may be different reasons for taking advances, as indicated above in the earlier part of this judgment. Learned counsel for the appellant submits that all that the Revenue has to show is thatadvance has been made by the buyer to the manufacturer which would lead to a presumption that it is to the advantage of the manufacturer having influenced the fixation of price as well. We, however, fail to appreciate the submission made on behalf of the Revenue for drawing a presumption that fixation of price is influenced by such an advance. In this connection, we may refer to the Boards circular of 1998 quoted earlier, clause (iii) of which clearly provides that if there is no difference in the selling price for both categories of the wholesale buyers and there is also no proof that on account of advance deposits taken from some buyers, the price charged from all buyers has been reduced, then the element of notional interest on advance deposits, cannot be added. Obviously, where there are two prices, one for those who have made the advance and the other who have not, it would require no further proof of the lower price having been influenced by theadvance made by the buyer. But otherwise it would require proof and the proof for the purposes of holding thatadvance has influenced the price would obviously be provided by the Revenue. There is no scope for any such presumption as canvassed on behalf of the appellant. We find the same position to be continued in the later amendment in the Rules of 2003 referred to above. As in Illustration 2, it talks of evidence to show thatadvance has resulted in lowering of the prices. The departmental circulars and the amendments in the Rules at the relevant time and subsequently too, do not envisage of any presumption to be drawn by the mere fact ofadvance by the buyer to the manufacturer. It requires proof and evidence to show that fixation of price has been influenced on the lower side by such a transaction of | 0 | 2,871 | 657 | ### Instruction:
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is required to be reduced to Rs.11,50,000/-.ORThe appeal is required to be allowed both on merits and on time bar in the light of judgments noted by Member (Judicial) Shri S.L. Peeran in his order." 15. The third Member being Member (Technical) agreed with the Member (Judicial) and after referring to the similar issue decided by the Assistant Commissioner vide order no.71/96 mentioned above, held that it could not be validly said that the facts were suppressed. He, therefore, held that the demand was time barred.16. On the inspection charges he held that the same are includible in the assessable value. Hence, he agreed with both the members on this point. He, therefore, allowed the appeal on merits and held that the demand was time barred and set aside the order of the Commissioner.17. Accordingly, by a majority of 2:1, the appeal of the assessee was allowed.18. Aggrieved, the Department has come up in appeal before us. 19. It is clear from the above that on the point of inclusion of inspection charges in the assessable value, all the three members have given a common finding that the said charges are to be includible in the assessable value. It is stated that the assessee has not filed any appeal on this point. Thus, the order of the Tribunal has attained finality in this regard. 20. So far as the payment of differential duty on escalation bill is concerned, the assessee in reply to the show cause notice has admitted its liability to pay the said duty and the same has already been paid and pursuant to the finding of the Commissioner, the same has been appropriated against this liability. Tribunal has also recorded the same. There is no dispute on this point also. 21. So far as the interest on advances received from the Railways is concerned, by a majority of 2:1, it has been held that the advances received and the price were in full knowledge of the Department which is clear from the order in original no.71/96 dated 15.10.1996 wherein the Assistant Collector has noted about the advances received and has also held that the advances received had no nexus with the contract and dropped similar proceedings. 22. By the majority view, the Tribunal has also held that since the facts regarding receipt of advances were already in the knowledge of the Revenue it could not be said that there was suppression of facts regarding advances received warranting invocation of extended period of limitation. The finding regarding limitation has not been specifically challenged by the Revenue in this appeal. Even otherwise, we agree with the Tribunal that since the fact regarding advances received was already in the knowledge of the Department and the earlier similar proceedings initiated by the Department were dropped by the Assistant Commissioner, the Revenue was not justified in invoking the extended period of limitation. We confirm the finding of the Tribunal on the point of limitation and hold that the Revenue was not justified in invoking the extended period of limitation. Insofar as the under-valuation on account of advances received but not included in the assessable value is concerned, suffice would it be to say that the point is concluded against the Revenue and in favour of the assessee by a judgment of this Court in the case of Commissioner of Central Excise, Mumbai III v. ISPL Industries Ltd. (2003) 5 SCC 113 in which it has been held as under : "It is clear that the mere fact of making an interest-free advance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the Revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods. There may be different reasons for taking advances, as indicated above in the earlier part of this judgment. Learned counsel for the appellant submits that all that the Revenue has to show is that interest-free advance has been made by the buyer to the manufacturer which would lead to a presumption that it is to the advantage of the manufacturer having influenced the fixation of price as well. We, however, fail to appreciate the submission made on behalf of the Revenue for drawing a presumption that fixation of price is influenced by such an advance. In this connection, we may refer to the Boards circular of 1998 quoted earlier, clause (iii) of which clearly provides that if there is no difference in the selling price for both categories of the wholesale buyers and there is also no proof that on account of advance deposits taken from some buyers, the price charged from all buyers has been reduced, then the element of notional interest on advance deposits, cannot be added. Obviously, where there are two prices, one for those who have made the advance and the other who have not, it would require no further proof of the lower price having been influenced by the interest-free advance made by the buyer. But otherwise it would require proof and the proof for the purposes of holding that interest-free advance has influenced the price would obviously be provided by the Revenue. There is no scope for any such presumption as canvassed on behalf of the appellant. We find the same position to be continued in the later amendment in the Rules of 2003 referred to above. As in Illustration 2, it talks of evidence to show that interest-free advance has resulted in lowering of the prices. The departmental circulars and the amendments in the Rules at the relevant time and subsequently too, do not envisage of any presumption to be drawn by the mere fact of interest-free advance by the buyer to the manufacturer. It requires proof and evidence to show that fixation of price has been influenced on the lower side by such a transaction of interest-free advance."
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22. By the majority view, the Tribunal has also held that since the facts regarding receipt of advances were already in the knowledge of the Revenue it could not be said that there was suppression of facts regarding advances received warranting invocation of extended period of limitation. The finding regarding limitation has not been specifically challenged by the Revenue in this appeal. Even otherwise, we agree with the Tribunal that since the fact regarding advances received was already in the knowledge of the Department and the earlier similar proceedings initiated by the Department were dropped by the Assistant Commissioner, the Revenue was not justified in invoking the extended period of limitation. We confirm the finding of the Tribunal on the point of limitation and hold that the Revenue was not justified in invoking the extended period of limitation. Insofar as theon account of advances received but not included in the assessable value is concerned, suffice would it be to say that the point is concluded against the Revenue and in favour of the assessee by a judgment of this Court in the case of Commissioner of Central Excise, Mumbai III v. ISPL Industries Ltd. (2003) 5 SCC 113 in which it has been held as underis clear that the mere fact of making anadvance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the Revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods. There may be different reasons for taking advances, as indicated above in the earlier part of this judgment. Learned counsel for the appellant submits that all that the Revenue has to show is thatadvance has been made by the buyer to the manufacturer which would lead to a presumption that it is to the advantage of the manufacturer having influenced the fixation of price as well. We, however, fail to appreciate the submission made on behalf of the Revenue for drawing a presumption that fixation of price is influenced by such an advance. In this connection, we may refer to the Boards circular of 1998 quoted earlier, clause (iii) of which clearly provides that if there is no difference in the selling price for both categories of the wholesale buyers and there is also no proof that on account of advance deposits taken from some buyers, the price charged from all buyers has been reduced, then the element of notional interest on advance deposits, cannot be added. Obviously, where there are two prices, one for those who have made the advance and the other who have not, it would require no further proof of the lower price having been influenced by theadvance made by the buyer. But otherwise it would require proof and the proof for the purposes of holding thatadvance has influenced the price would obviously be provided by the Revenue. There is no scope for any such presumption as canvassed on behalf of the appellant. We find the same position to be continued in the later amendment in the Rules of 2003 referred to above. As in Illustration 2, it talks of evidence to show thatadvance has resulted in lowering of the prices. The departmental circulars and the amendments in the Rules at the relevant time and subsequently too, do not envisage of any presumption to be drawn by the mere fact ofadvance by the buyer to the manufacturer. It requires proof and evidence to show that fixation of price has been influenced on the lower side by such a transaction of
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Commissioner of Income Tax-I Vs. M/s. Reliance Energy Ltd. (Formerly BSES Ltd.) through its M.D | other contention of the Revenue is that sub-section (5) of Section 80-IA refers to computation of quantum of deduction being limited from eligible business by taking it as the only source of income. It is contended that the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from eligible business which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the business income. On the other hand, it is the case of the Assessee that sub-section (5) pertains only to determination of the quantum of deduction under sub-section (1) by treating the eligible business as the only source of income. It was submitted by Mr. Vohra, learned Senior Counsel, that the final computation of deduction under Section 80-IA for the assessment year 2002-03 as accepted by the Assessing Officer, was arrived at by taking into account the profits from the eligible business as the only source of income. He submitted that, however, sub-section (5) is a step antecedent to the treatment to be given to the deduction under sub- section (1) and is not concerned with the extent to which the computed deduction be allowed. To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA. The question that arises further with reference to allowing the deduction so computed to arrive at the total income of the Assessee cannot be determined by resorting to interpretation of sub- section (5). 14. It will be useful to refer to the judgment of this Court relied upon by the Revenue as well as the Assessee. In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows: 80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. 15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income. An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section. It is not necessary for us to deal with this submission in view of the findings recorded above. | 0[ds]The claim of the Assessee that deduction under Section 80-IA should be allowed to the extent of gross total income was rejected by the Assessing Officer.As stated above, Section 80AB was inserted in the year 1981 to get over a judgment of this Court in Cloth Traders (P) Ltd. (supra). The Circular dated 22.09.1980 issued by the CBDT makes it clear that the reason for introduction of Section 80AB of the Act was for the deductions under Part C of Chapter VI-A of the Act to be made on the net income of the eligible business and not on the total profits from the eligible business. A plain reading of Section 80AB of the Act shows that the provision pertains to determination of the quantum of deductible income in the gross total income. Section 80AB cannot be read to be curtailing the width of Section 80-IA. It is relevant to take note of Section 80A(1) which stipulates that in computation of the total income of an assessee, deductions specified in Section 80C to Section 80U of the Act shall be allowed from his gross total income. Sub-section (2) of Section 80A of the Act provides that the aggregate amount of the deductions under Chapter VI-A shall not exceed the gross total income of the Assessee. We are in agreement with the Appellate Authority that Section 80AB of the Act which deals with determination of deductions under Part C of Chapter VI-A is with respect only to computation of deduction on the basis of net income.11. The essential ingredients of Section 80-IA (1) of the Act are:a) the gross total income of an assessee should include profits and gains;b) those profits and gains are derived by an undertaking or an enterprise from a business referred to in sub- section (4);c) the assessee is entitled for deduction of an amount equal to 100% of the profits and gains derived from such business for 10 consecutive assessment years; andd) in computing the total income of the Assessee, such deduction shall be allowed.12. The import of Section 80-IA is that the total income of an assessee is computed by taking into account the allowable deduction of the profits and gains derived from the eligible business. With respect to the facts of this Appeal, there is no dispute that the deduction quantified under Section 80-IA is Rs.492,78,60,973/-. To make it clear, the said amount represents the net profit made by the Assessee from the eligible business covered under sub-section (4), i.e., from the Assessees business unit involved in generation of power.The claim of the Assessee is that in computing its total income, deductions available to it have to be set-off against the gross total income, while the Revenue contends that it is only the business income which has to be taken into account for the purpose of setting-off the deductions under Sections 80-IA and 80-IB of the Act. To illustrate, the gross total income of the Assessee for the assessment year 2002-03 is less than the quantum of deduction determined under Section 80-IA of the Act. The Assessee contends that income from all other heads including income from other sources, in addition to business income, have to be taken into account for the purpose of allowing the deductions available to the Assessee, subject to the ceiling of gross total income.The Appellate Authority was of the view that there is no limitation on deduction admissible under Section 80-IA of the Act to income under the head business only, with which we agree.To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA.In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows:80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee.15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income.An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section.It is not necessary for us to deal with this submission in view of the findings recorded above. | 0 | 4,237 | 1,469 | ### Instruction:
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other contention of the Revenue is that sub-section (5) of Section 80-IA refers to computation of quantum of deduction being limited from eligible business by taking it as the only source of income. It is contended that the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from eligible business which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the business income. On the other hand, it is the case of the Assessee that sub-section (5) pertains only to determination of the quantum of deduction under sub-section (1) by treating the eligible business as the only source of income. It was submitted by Mr. Vohra, learned Senior Counsel, that the final computation of deduction under Section 80-IA for the assessment year 2002-03 as accepted by the Assessing Officer, was arrived at by taking into account the profits from the eligible business as the only source of income. He submitted that, however, sub-section (5) is a step antecedent to the treatment to be given to the deduction under sub- section (1) and is not concerned with the extent to which the computed deduction be allowed. To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA. The question that arises further with reference to allowing the deduction so computed to arrive at the total income of the Assessee cannot be determined by resorting to interpretation of sub- section (5). 14. It will be useful to refer to the judgment of this Court relied upon by the Revenue as well as the Assessee. In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows: 80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made. It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. 15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income. An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section. It is not necessary for us to deal with this submission in view of the findings recorded above.
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### Explanation:
consecutive assessment years; andd) in computing the total income of the Assessee, such deduction shall be allowed.12. The import of Section 80-IA is that the total income of an assessee is computed by taking into account the allowable deduction of the profits and gains derived from the eligible business. With respect to the facts of this Appeal, there is no dispute that the deduction quantified under Section 80-IA is Rs.492,78,60,973/-. To make it clear, the said amount represents the net profit made by the Assessee from the eligible business covered under sub-section (4), i.e., from the Assessees business unit involved in generation of power.The claim of the Assessee is that in computing its total income, deductions available to it have to be set-off against the gross total income, while the Revenue contends that it is only the business income which has to be taken into account for the purpose of setting-off the deductions under Sections 80-IA and 80-IB of the Act. To illustrate, the gross total income of the Assessee for the assessment year 2002-03 is less than the quantum of deduction determined under Section 80-IA of the Act. The Assessee contends that income from all other heads including income from other sources, in addition to business income, have to be taken into account for the purpose of allowing the deductions available to the Assessee, subject to the ceiling of gross total income.The Appellate Authority was of the view that there is no limitation on deduction admissible under Section 80-IA of the Act to income under the head business only, with which we agree.To explain the interplay between sub-section (5) and sub-section (1) of Section 80-IA, it will be useful to refer to the facts of this Appeal. The amount of deduction from the eligible business computed under Section 80-IA for the assessment year 2002-03 is Rs. 492,78,60,973 /-. There is no dispute that the said amount represents income from the eligible business under Section 80-IA and is the only source of income for the purposes of computing deduction under Section 80-IA.In Synco Industries (supra), this Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows:80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under sub- section (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.It was held in Synco Industries (supra) that for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income. Further, the Court concluded that Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee. The Assessee also relied on the judgment of this Court in Canara Workshops (P) Ltd., Kodialball, Mangalore (supra) to emphasize the purpose of sub-section (5) of Section 80-IA. In this case, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels. This Court was not in agreement with the submissions made by the Revenue. It was held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee.15. In the case before us, there is no discussion about Section 80-IA(5) by the Appellate Authority, nor the Tribunal and the High Court. However, we have considered the submissions on behalf of the Revenue as it has a bearing on the interpretation of sub-section (1) of Section 80-IA of the Act. We hold that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating eligible business as the only source of income. Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to business income.An attempt was made by the learned Senior Counsel for the Revenue to rely on the phrase derived … from in Section 80-IA (1) of the Act in respect of his submission that the intention of the legislature was to give the narrowest possible construction to deduction admissible under this sub-section.It is not necessary for us to deal with this submission in view of the findings recorded above.
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THE STATE OF JHARKHAND AND ORS Vs. M/S AJANTA BOTTLERS AND BLENDERS PVT LTD | within reasonable limits the number of those who may engage in it.?58. In the view we have taken, the argument that the Government cannot by contract do what it cannot do under a statute must fail. No statute forbids the Government from trading in its own rights or privileges and the statute under consideration, far from doing so, expressly empowers it by Sections 27 and 34 to grant 11 44 L Ed 728 12 52 L Ed 578 13 52 L Ed 581 leases of its rights and to issue the requisite licences, permits or passes on payment of such fees as may be prescribed by the Financial Commissioner.59. The argument that in Cooverjee case the impugned power having been exercised in respect of a centrally administered area, the power was not fettered by legislative lists loses its relevance in the view we are taking. It is true that in that case it was permissible to the Court to find, as in fact it did, that the fee imposed on the licensees was?more in the nature of a tax than a licence fee?. As the authority which levied the fee had the power to exact a tax, the levy could be upheld as a tax even if it could not be justified as a ?fee?, in the constitutional sense of that term. But the ?licence fee? or ?fixed fee? in the instant case does not have to conform to the requirement that it must bear a reasonable relationship with the services rendered to the licensees. The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transactions.? (emphasis supplied)13. Indeed, if the State legislation was to provide for levy on the imported rectified spirit per se the same would be without jurisdiction, as consistently held, including by the Constitution Bench in Deccan Sugar & Abkari Co. Ltd. Vs. Commissioner of Excise, A.P. 14 , paragraph No.2 of this decision, which reads thus:?2. It is settled by the decision of this Court in Synthetics and Chemicals Ltd. v. State of U.P. that the State Legislature has no jurisdiction to levy any excise duty on rectified spirit. The State can levy excise duty only on potable liquor fit for human consumption and as rectified spirit does not fall under that category the 14 (2004) 1 SCC 243 State Legislature cannot impose any excise duty. The decision in Synthetics and Chemicals Ltd. v. State of U.P. has been followed in State of U.P. v. Modi Distillery 15 where certain wastage of ethyl alcohol was sought to be taxed. This Court following the decision in Synthetics and Chemicals Ltd. came to the conclusion that this cannot be done.?14. The next question is whether the levy is in the nature of tax or excise duty. If it is a case of excise duty on potable liquor produced by use of imported rectified spirit, the State has jurisdiction to legislate in respect of duty on the production or manufacture of such goods produced or manufactured within the State. In the present case, we find merits in the submissions of the appellant State that the impost is neither in the nature of a tax nor excise duty but it is towards the charges by whatever name, for regulating the production of potable liquor to preserve public health and morality including for parting with its rights or privileges regarding manufacture, supply or sale of potable liquor or intoxicating liquor and to regulate the use of imported rectified spirit for production and sale of potable liquor. In such a case, the State need bear no quid pro quo to the services rendered to the licencee for production of foreign liquor (IMFA). 15 (1995) 5 SCC 753 15. The fact that the manufacturer-respondent has already obtained requisite licences for import of rectified spirit and production of foreign liquor (IMFA) on payment of fixed rates does not mean that the State has surrendered all facets of its rights in respect of every form of activity in relation to potable liquor – its manufacture, storage, export, import, sale and possession. The amended provision is an enabling provision authorising the State to levy charges or impost for ceding its one or more of the activity in respect of foreign liquor (IMFL) produced by use of imported rectified spirit. Such impost can be in addition to the general power of the State to issue licence on payment of fees for production and sale of potable liquor. As observed in Har Shankar (supra), in paragraph No.56, the State need bear no quid pro quo to the services rendered to the licensees of producer of foreign liquor.16. The respondent, however, placed heavy reliance on the decision in State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd. and Ors. 16 , to contend that the State is obliged to justify the impost based on quid pro quo. We are afraid, this decision is of no avail to the respondent. In that case, the Court was dealing with 16 (2004) 1 SCC 225 challenge to Rule 3(a) therein on the ground that the State Legislature did not have legislative competence to legislate on ?denatured spirit? which is unfit for human consumption. In that context, this Court relied on the decision in Synthetics and Chemicals Ltd. and Ors. Vs. State of U.P. and Ors. 17 and answered the issue. If the case under consideration was to be regarding legislation on imported rectified spirit as such, this decision would have come handy. However, having opined that the purport of the impugned Rule 106(Tha), is to permit impost on the final processed product being foreign liquor ?IMFL?, before bottling as fit for human consumption, the State has jurisdiction to legislate on that subject and need bear no quid pro quo to the services rendered to the licencee of manufacturer of foreign liquor (IMFL). | 1[ds]10. We have adverted to the above-mentioned process, noted in the written submissions filed by the appellant, so as to give proper interpretation to the impugned notification and the subject rules, in particular Rule 106(Tha). English version of the said rule noted in the notification (as translated by the official translator of this Court reproduced in paragraph 2 above), in our opinion, makes it amply clear that the levy or impost fructifies only upon completion of distillation process (in two stages- first from rectified spirit to ENA and then from ENA to IMFL) and in particular converting into a final product ?IMFL?. The collection of impost is, however, deferred until the bottling of that product. In other words, the levy is not at the stage of import of rectified spirit within the State; nor at the stage of initial distillation thereof to Extra Neutral Alcohol (ENA) and not until the product IMFL is ready for bottling as such. Thus, the levy under the impugned rule ripens or fructifies only after the original raw material (imported rectified spirit) has undergone distillation process at two different stages and transmute and mutate into an intoxicant or potable alcohol palatable to human consumption, but its (impost) collection is effected just before bottling it in that form (potable liquor). Indeed, the levy predicated in this rule is on the total quantity of imported rectified spirit utilised for mutating it in the form of IMFL, a new produce. The last part of the rule stipulates the quantum of charges to be levied on such utilized imported rectified spirit for production of the foreign liquor. For that limited purpose, the quantity of imported rectified spirit utilized in the production of potable liquor, is reckoned.11. Reading the impugned provision as a whole and line by line or word by word in this perspective, it must follow that the substance of the provision is to levy charges on the product IMFL produced or manufactured by use of imported rectified spirit. In that sense, the levy is not on the input (imported rectified spirit) of the final product as such but is on the manufactured or produced product being potable alcohol palatable to human consumption. For the purposes of computing the levy, the yardstick of Rs.6 per LPL on the total quantity of imported rectified spirit utilized for production of IMFL is reckoned. Thus, the impost is not on the imported rectified spirit as such but only on the produced foreign liquor before it is bottled for sale in the wholesale or retail market, as the case may be. If so understood, the whole edifice of the argument of respondents regarding the interpretation of the impugned rule must collapse. For, the challenge to the impugned rule is on the assumption that it permits the competent authority to levy charges on the imported rectified spirit and not fit for human consumption but which has the potency of being used for producing intoxicants or potable liquor though exclusively meant for industrial purposes. Once that assumption is discounted or disregarded, nothing more survives for consideration. We say so because, it is well established that the State may pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 and 8 of List II and may also laydown regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol. Had it been the case of levy on non- potable alcohol (imported rectified spirit) per se, only then the question about the competency of the State Legislature or the justness of the levy on the doctrine of quid pro quo may become relevant. However, if it is a case of legislation in respect of potable alcohol, as has been noted by us hitherto, the State would be competent to legislate in that regard and levy charges – be it for regulating the same or impost for parting with its rights regarding manufacture, storage, export, sale and possessionit is a case of excise duty on potable liquor produced by use of imported rectified spirit, the State has jurisdiction to legislate in respect of duty on the production or manufacture of such goods produced or manufactured within the State. In the present case, we find merits in the submissions of the appellant State that the impost is neither in the nature of a tax nor excise duty but it is towards the charges by whatever name, for regulating the production of potable liquor to preserve public health and morality including for parting with its rights or privileges regarding manufacture, supply or sale of potable liquor or intoxicating liquor and to regulate the use of imported rectified spirit for production and sale of potable liquor. In such a case, the State need bear no quid pro quo to the services rendered to the licencee for production of foreign liquor (IMFA). 15 (1995) 5 SCC 753 15. The fact that the manufacturer-respondent has already obtained requisite licences for import of rectified spirit and production of foreign liquor (IMFA) on payment of fixed rates does not mean that the State has surrendered all facets of its rights in respect of every form of activity in relation to potable liquor – its manufacture, storage, export, import, sale and possession. The amended provision is an enabling provision authorising the State to levy charges or impost for ceding its one or more of the activity in respect of foreign liquor (IMFL) produced by use of imported rectified spirit. Such impost can be in addition to the general power of the State to issue licence on payment of fees for production and sale of potable liquor. As observed in Har Shankar (supra), in paragraph No.56, the State need bear no quid pro quo to the services rendered to the licensees of producer of foreign liquor.16. The respondent, however, placed heavy reliance on the decision in State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd. and Ors. 16 , to contend that the State is obliged to justify the impost based on quid pro quo. We are afraid, this decision is of no avail to the respondent. In that case, the Court was dealing with 16 (2004) 1 SCC 225 challenge to Rule 3(a) therein on the ground that the State Legislature did not have legislative competence to legislate on ?denatured spirit? which is unfit for human consumption. In that context, this Court relied on the decision in Synthetics and Chemicals Ltd. and Ors. Vs. State of U.P. and Ors. 17 and answered the issue. If the case under consideration was to be regarding legislation on imported rectified spirit as such, this decision would have come handy. However, having opined that the purport of the impugned Rule 106(Tha), is to permit impost on the final processed product being foreign liquor ?IMFL?, before bottling as fit for human consumption, the State has jurisdiction to legislate on that subject and need bear no quid pro quo to the services rendered to the licencee of manufacturer of foreign liquor (IMFL). | 1 | 6,592 | 1,312 | ### 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:
within reasonable limits the number of those who may engage in it.?58. In the view we have taken, the argument that the Government cannot by contract do what it cannot do under a statute must fail. No statute forbids the Government from trading in its own rights or privileges and the statute under consideration, far from doing so, expressly empowers it by Sections 27 and 34 to grant 11 44 L Ed 728 12 52 L Ed 578 13 52 L Ed 581 leases of its rights and to issue the requisite licences, permits or passes on payment of such fees as may be prescribed by the Financial Commissioner.59. The argument that in Cooverjee case the impugned power having been exercised in respect of a centrally administered area, the power was not fettered by legislative lists loses its relevance in the view we are taking. It is true that in that case it was permissible to the Court to find, as in fact it did, that the fee imposed on the licensees was?more in the nature of a tax than a licence fee?. As the authority which levied the fee had the power to exact a tax, the levy could be upheld as a tax even if it could not be justified as a ?fee?, in the constitutional sense of that term. But the ?licence fee? or ?fixed fee? in the instant case does not have to conform to the requirement that it must bear a reasonable relationship with the services rendered to the licensees. The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transactions.? (emphasis supplied)13. Indeed, if the State legislation was to provide for levy on the imported rectified spirit per se the same would be without jurisdiction, as consistently held, including by the Constitution Bench in Deccan Sugar & Abkari Co. Ltd. Vs. Commissioner of Excise, A.P. 14 , paragraph No.2 of this decision, which reads thus:?2. It is settled by the decision of this Court in Synthetics and Chemicals Ltd. v. State of U.P. that the State Legislature has no jurisdiction to levy any excise duty on rectified spirit. The State can levy excise duty only on potable liquor fit for human consumption and as rectified spirit does not fall under that category the 14 (2004) 1 SCC 243 State Legislature cannot impose any excise duty. The decision in Synthetics and Chemicals Ltd. v. State of U.P. has been followed in State of U.P. v. Modi Distillery 15 where certain wastage of ethyl alcohol was sought to be taxed. This Court following the decision in Synthetics and Chemicals Ltd. came to the conclusion that this cannot be done.?14. The next question is whether the levy is in the nature of tax or excise duty. If it is a case of excise duty on potable liquor produced by use of imported rectified spirit, the State has jurisdiction to legislate in respect of duty on the production or manufacture of such goods produced or manufactured within the State. In the present case, we find merits in the submissions of the appellant State that the impost is neither in the nature of a tax nor excise duty but it is towards the charges by whatever name, for regulating the production of potable liquor to preserve public health and morality including for parting with its rights or privileges regarding manufacture, supply or sale of potable liquor or intoxicating liquor and to regulate the use of imported rectified spirit for production and sale of potable liquor. In such a case, the State need bear no quid pro quo to the services rendered to the licencee for production of foreign liquor (IMFA). 15 (1995) 5 SCC 753 15. The fact that the manufacturer-respondent has already obtained requisite licences for import of rectified spirit and production of foreign liquor (IMFA) on payment of fixed rates does not mean that the State has surrendered all facets of its rights in respect of every form of activity in relation to potable liquor – its manufacture, storage, export, import, sale and possession. The amended provision is an enabling provision authorising the State to levy charges or impost for ceding its one or more of the activity in respect of foreign liquor (IMFL) produced by use of imported rectified spirit. Such impost can be in addition to the general power of the State to issue licence on payment of fees for production and sale of potable liquor. As observed in Har Shankar (supra), in paragraph No.56, the State need bear no quid pro quo to the services rendered to the licensees of producer of foreign liquor.16. The respondent, however, placed heavy reliance on the decision in State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd. and Ors. 16 , to contend that the State is obliged to justify the impost based on quid pro quo. We are afraid, this decision is of no avail to the respondent. In that case, the Court was dealing with 16 (2004) 1 SCC 225 challenge to Rule 3(a) therein on the ground that the State Legislature did not have legislative competence to legislate on ?denatured spirit? which is unfit for human consumption. In that context, this Court relied on the decision in Synthetics and Chemicals Ltd. and Ors. Vs. State of U.P. and Ors. 17 and answered the issue. If the case under consideration was to be regarding legislation on imported rectified spirit as such, this decision would have come handy. However, having opined that the purport of the impugned Rule 106(Tha), is to permit impost on the final processed product being foreign liquor ?IMFL?, before bottling as fit for human consumption, the State has jurisdiction to legislate on that subject and need bear no quid pro quo to the services rendered to the licencee of manufacturer of foreign liquor (IMFL).
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### Explanation:
(imported rectified spirit) has undergone distillation process at two different stages and transmute and mutate into an intoxicant or potable alcohol palatable to human consumption, but its (impost) collection is effected just before bottling it in that form (potable liquor). Indeed, the levy predicated in this rule is on the total quantity of imported rectified spirit utilised for mutating it in the form of IMFL, a new produce. The last part of the rule stipulates the quantum of charges to be levied on such utilized imported rectified spirit for production of the foreign liquor. For that limited purpose, the quantity of imported rectified spirit utilized in the production of potable liquor, is reckoned.11. Reading the impugned provision as a whole and line by line or word by word in this perspective, it must follow that the substance of the provision is to levy charges on the product IMFL produced or manufactured by use of imported rectified spirit. In that sense, the levy is not on the input (imported rectified spirit) of the final product as such but is on the manufactured or produced product being potable alcohol palatable to human consumption. For the purposes of computing the levy, the yardstick of Rs.6 per LPL on the total quantity of imported rectified spirit utilized for production of IMFL is reckoned. Thus, the impost is not on the imported rectified spirit as such but only on the produced foreign liquor before it is bottled for sale in the wholesale or retail market, as the case may be. If so understood, the whole edifice of the argument of respondents regarding the interpretation of the impugned rule must collapse. For, the challenge to the impugned rule is on the assumption that it permits the competent authority to levy charges on the imported rectified spirit and not fit for human consumption but which has the potency of being used for producing intoxicants or potable liquor though exclusively meant for industrial purposes. Once that assumption is discounted or disregarded, nothing more survives for consideration. We say so because, it is well established that the State may pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 and 8 of List II and may also laydown regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol. Had it been the case of levy on non- potable alcohol (imported rectified spirit) per se, only then the question about the competency of the State Legislature or the justness of the levy on the doctrine of quid pro quo may become relevant. However, if it is a case of legislation in respect of potable alcohol, as has been noted by us hitherto, the State would be competent to legislate in that regard and levy charges – be it for regulating the same or impost for parting with its rights regarding manufacture, storage, export, sale and possessionit is a case of excise duty on potable liquor produced by use of imported rectified spirit, the State has jurisdiction to legislate in respect of duty on the production or manufacture of such goods produced or manufactured within the State. In the present case, we find merits in the submissions of the appellant State that the impost is neither in the nature of a tax nor excise duty but it is towards the charges by whatever name, for regulating the production of potable liquor to preserve public health and morality including for parting with its rights or privileges regarding manufacture, supply or sale of potable liquor or intoxicating liquor and to regulate the use of imported rectified spirit for production and sale of potable liquor. In such a case, the State need bear no quid pro quo to the services rendered to the licencee for production of foreign liquor (IMFA). 15 (1995) 5 SCC 753 15. The fact that the manufacturer-respondent has already obtained requisite licences for import of rectified spirit and production of foreign liquor (IMFA) on payment of fixed rates does not mean that the State has surrendered all facets of its rights in respect of every form of activity in relation to potable liquor – its manufacture, storage, export, import, sale and possession. The amended provision is an enabling provision authorising the State to levy charges or impost for ceding its one or more of the activity in respect of foreign liquor (IMFL) produced by use of imported rectified spirit. Such impost can be in addition to the general power of the State to issue licence on payment of fees for production and sale of potable liquor. As observed in Har Shankar (supra), in paragraph No.56, the State need bear no quid pro quo to the services rendered to the licensees of producer of foreign liquor.16. The respondent, however, placed heavy reliance on the decision in State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd. and Ors. 16 , to contend that the State is obliged to justify the impost based on quid pro quo. We are afraid, this decision is of no avail to the respondent. In that case, the Court was dealing with 16 (2004) 1 SCC 225 challenge to Rule 3(a) therein on the ground that the State Legislature did not have legislative competence to legislate on ?denatured spirit? which is unfit for human consumption. In that context, this Court relied on the decision in Synthetics and Chemicals Ltd. and Ors. Vs. State of U.P. and Ors. 17 and answered the issue. If the case under consideration was to be regarding legislation on imported rectified spirit as such, this decision would have come handy. However, having opined that the purport of the impugned Rule 106(Tha), is to permit impost on the final processed product being foreign liquor ?IMFL?, before bottling as fit for human consumption, the State has jurisdiction to legislate on that subject and need bear no quid pro quo to the services rendered to the licencee of manufacturer of foreign liquor (IMFL).
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Tushar Arun Gandhi Vs. State of Gujarat and Ors | by the Trusts which presently run the Ashram under the auspices of the second respondent, while allowing for funding by the Central and State Governments. According to the appellant, the work of redevelopment ought to remain within the domain of the second to seventh respondents. 3. By a judgment dated 25 November 2021, a Division Bench of the High Court of Gujarat, disposed of the petition holding that the petition under Article 226 is not required to be entertained in view of the submission of and undertaking furnished by the Advocate General for the State of Gujarat. The undertaking which has been referred to in the concluding paragraph of the judgment of the High Court and the submission are recorded in paragraph 7 of the impugned judgment which is extracted below: [7] The State which is on advance notice by virtue of the advance copy having been served on the office of learned Advocate General, is represented by the learned Advocate General and when the matter is taken up for consideration, learned Advocate General has appeared and a submission has been made by the learned Advocate General to the effect that existing Gandhi Ashram on Sabarmati Riverfront, which is an area of one acre would not be disturbed, or, in other words, it would be maintained as it is and all efforts would be made even for the improvement of the said Ashram, if decided by the Governing Council. He would also submit that for promoting and educating the people in the philosophy, values and teachings of Gandhiji, who is the Father of the Nation, this mammoth project has been taken up and he states that State would not undertake any activity in the said one acre of the area where the Gandhi Ashram is located that would disturb the existing structures, but the project envisaged under the impugned order would be put into action for spreading the teachings of Gandhian philosophy of Gandhi at all levels. His submission and undertaking is placed on record. The High Court, without allowing pleadings to be completed, dismissed the Writ petition observing that the Government Order dated 05.03.2021 would preserve the teachings of Mahatma Gandhi: [8] In this background, we have perused the impugned order dated 05.03.2021 which would indicate that to preserve the ethos and teachings of Mahatma Gandhi and the part taken in the freedom struggle and to promote and educate the great philosophy, values and teachings of Mahatma Gandhi, the Government of Gujarat has envisioned and has come up with the project of comprehensive development of Gandhi Ashram Memorial and in this direction, Government Resolution dated 05.03.2021 was made under which a Governing Council and an Executive Council have been constituted which comprises of several representatives including the representative of Sabarmati Ashram Preservation Memorial Trust, that is the third respondent herein. Hence, any apprehension of the said Ashram about the existing ashram being altered can be espoused in the Governing Council by the representative of 3rd respondent. In other words, apprehension expressed by the learned counsel appearing for the petitioner that the decisions would be taken by the Governing Council or Executive Council unilaterally to the detriment to the Ashram stands allayed. In fact, we notice that the role and responsibilities of the Governing Council has also been fixed under the Government resolution dated 05.03.2021. The authorities required to implement the project have also been specified under the said Government resolution which would clearly indicate that neither the Ashram not the existing Sabarmati Ashram not its value and importance is being denuded or reduced. But, on the other hand, by virtue of the said development work which is being taken, the existing Ashram would receive attention at all levels and it would not only be a source of inspiration to one and all across the Globe, but it would also be an international tourist destination which, in the process, would earn name and fame at the national as well and international level. […] [10] In that view of the matter, we are of the considered view that this Writ Petition is not required to be entertained and by placing on record the submission and undertaking given by the learned Advocate general on record, we dispose of this Writ Petition. Hence, the question of issuing of notice to any of the respondents would not arise. 4. Ms Indira Jaising, Senior Counsel, appears on behalf of the appellant. Mr Tushar Mehta, Solicitor General, appears on behalf of the first respondent, on caveat. 5. The High Court did not call for an affidavit in reply from the State of Gujarat in response to the petition, before it proceeded to dispose of the writ petition. It would have been appropriate for the High Court to decide upon the issues which are raised in the petition after furnishing to the State of Gujarat an opportunity of filing a comprehensive affidavit dealing with various facets of the matter. The High Court having disposed of the petition summarily without calling for a reply from the State of Gujarat, we were of the prima facie view that the matter would require to be remanded to the High Court. The Solicitor General has fairly consented to the petition being restored back to the file of the High Court to follow the above course of action. 6. This Court has not entered into the merits of the issues which are sought to be raised by the appellant before the High Court or, for that matter, expressed an opinion on such aspects of the matter which the State of Gujarat or the other respondents would seek to place before the High Court. The High Court would form a fresh view after allowing the pleadings to be completed and hearing the parties. All the rights and contentions of the parties are kept open. 7. Both the Senior Counsel for the appellant and the Solicitor General have joined in stating that they would request the High Court to expeditiously dispose of the proceedings. | 1[ds]5. The High Court did not call for an affidavit in reply from the State of Gujarat in response to the petition, before it proceeded to dispose of the writ petition. It would have been appropriate for the High Court to decide upon the issues which are raised in the petition after furnishing to the State of Gujarat an opportunity of filing a comprehensive affidavit dealing with various facets of the matter. The High Court having disposed of the petition summarily without calling for a reply from the State of Gujarat, we were of the prima facie view that the matter would require to be remanded to the High Court. The Solicitor General has fairly consented to the petition being restored back to the file of the High Court to follow the above course of action.6. This Court has not entered into the merits of the issues which are sought to be raised by the appellant before the High Court or, for that matter, expressed an opinion on such aspects of the matter which the State of Gujarat or the other respondents would seek to place before the High Court. The High Court would form a fresh view after allowing the pleadings to be completed and hearing the parties. All the rights and contentions of the parties are kept open.7. Both the Senior Counsel for the appellant and the Solicitor General have joined in stating that they would request the High Court to expeditiously dispose of the proceedings. | 1 | 1,215 | 265 | ### 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:
by the Trusts which presently run the Ashram under the auspices of the second respondent, while allowing for funding by the Central and State Governments. According to the appellant, the work of redevelopment ought to remain within the domain of the second to seventh respondents. 3. By a judgment dated 25 November 2021, a Division Bench of the High Court of Gujarat, disposed of the petition holding that the petition under Article 226 is not required to be entertained in view of the submission of and undertaking furnished by the Advocate General for the State of Gujarat. The undertaking which has been referred to in the concluding paragraph of the judgment of the High Court and the submission are recorded in paragraph 7 of the impugned judgment which is extracted below: [7] The State which is on advance notice by virtue of the advance copy having been served on the office of learned Advocate General, is represented by the learned Advocate General and when the matter is taken up for consideration, learned Advocate General has appeared and a submission has been made by the learned Advocate General to the effect that existing Gandhi Ashram on Sabarmati Riverfront, which is an area of one acre would not be disturbed, or, in other words, it would be maintained as it is and all efforts would be made even for the improvement of the said Ashram, if decided by the Governing Council. He would also submit that for promoting and educating the people in the philosophy, values and teachings of Gandhiji, who is the Father of the Nation, this mammoth project has been taken up and he states that State would not undertake any activity in the said one acre of the area where the Gandhi Ashram is located that would disturb the existing structures, but the project envisaged under the impugned order would be put into action for spreading the teachings of Gandhian philosophy of Gandhi at all levels. His submission and undertaking is placed on record. The High Court, without allowing pleadings to be completed, dismissed the Writ petition observing that the Government Order dated 05.03.2021 would preserve the teachings of Mahatma Gandhi: [8] In this background, we have perused the impugned order dated 05.03.2021 which would indicate that to preserve the ethos and teachings of Mahatma Gandhi and the part taken in the freedom struggle and to promote and educate the great philosophy, values and teachings of Mahatma Gandhi, the Government of Gujarat has envisioned and has come up with the project of comprehensive development of Gandhi Ashram Memorial and in this direction, Government Resolution dated 05.03.2021 was made under which a Governing Council and an Executive Council have been constituted which comprises of several representatives including the representative of Sabarmati Ashram Preservation Memorial Trust, that is the third respondent herein. Hence, any apprehension of the said Ashram about the existing ashram being altered can be espoused in the Governing Council by the representative of 3rd respondent. In other words, apprehension expressed by the learned counsel appearing for the petitioner that the decisions would be taken by the Governing Council or Executive Council unilaterally to the detriment to the Ashram stands allayed. In fact, we notice that the role and responsibilities of the Governing Council has also been fixed under the Government resolution dated 05.03.2021. The authorities required to implement the project have also been specified under the said Government resolution which would clearly indicate that neither the Ashram not the existing Sabarmati Ashram not its value and importance is being denuded or reduced. But, on the other hand, by virtue of the said development work which is being taken, the existing Ashram would receive attention at all levels and it would not only be a source of inspiration to one and all across the Globe, but it would also be an international tourist destination which, in the process, would earn name and fame at the national as well and international level. […] [10] In that view of the matter, we are of the considered view that this Writ Petition is not required to be entertained and by placing on record the submission and undertaking given by the learned Advocate general on record, we dispose of this Writ Petition. Hence, the question of issuing of notice to any of the respondents would not arise. 4. Ms Indira Jaising, Senior Counsel, appears on behalf of the appellant. Mr Tushar Mehta, Solicitor General, appears on behalf of the first respondent, on caveat. 5. The High Court did not call for an affidavit in reply from the State of Gujarat in response to the petition, before it proceeded to dispose of the writ petition. It would have been appropriate for the High Court to decide upon the issues which are raised in the petition after furnishing to the State of Gujarat an opportunity of filing a comprehensive affidavit dealing with various facets of the matter. The High Court having disposed of the petition summarily without calling for a reply from the State of Gujarat, we were of the prima facie view that the matter would require to be remanded to the High Court. The Solicitor General has fairly consented to the petition being restored back to the file of the High Court to follow the above course of action. 6. This Court has not entered into the merits of the issues which are sought to be raised by the appellant before the High Court or, for that matter, expressed an opinion on such aspects of the matter which the State of Gujarat or the other respondents would seek to place before the High Court. The High Court would form a fresh view after allowing the pleadings to be completed and hearing the parties. All the rights and contentions of the parties are kept open. 7. Both the Senior Counsel for the appellant and the Solicitor General have joined in stating that they would request the High Court to expeditiously dispose of the proceedings.
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1
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5. The High Court did not call for an affidavit in reply from the State of Gujarat in response to the petition, before it proceeded to dispose of the writ petition. It would have been appropriate for the High Court to decide upon the issues which are raised in the petition after furnishing to the State of Gujarat an opportunity of filing a comprehensive affidavit dealing with various facets of the matter. The High Court having disposed of the petition summarily without calling for a reply from the State of Gujarat, we were of the prima facie view that the matter would require to be remanded to the High Court. The Solicitor General has fairly consented to the petition being restored back to the file of the High Court to follow the above course of action.6. This Court has not entered into the merits of the issues which are sought to be raised by the appellant before the High Court or, for that matter, expressed an opinion on such aspects of the matter which the State of Gujarat or the other respondents would seek to place before the High Court. The High Court would form a fresh view after allowing the pleadings to be completed and hearing the parties. All the rights and contentions of the parties are kept open.7. Both the Senior Counsel for the appellant and the Solicitor General have joined in stating that they would request the High Court to expeditiously dispose of the proceedings.
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KALPANA VYAS Vs. RAJ KUMAR RANGWANI | Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 02.01.2018 passed by the High Court of Rajasthan Bench at Jaipur in S.B. Civil Writ Petition No. 5403/2015 whereby the High Court has allowed the writ petition filed by the respondent herein. 3. The issue involved in the appeal is short, as also the facts of the case lie in a narrow compass, which would be clear from the narration infra. 4. The appellant is the applicant, whereas the respondent is the non¬applicant in the eviction petition filed by the appellant against the respondent before the Rent Control Tribunal, Rajasthan out of which this appeal arises. 5. The appellant ¬ a landlady of the suit premises filed the eviction petition against the respondent¬ tenant of the suit premises under Section 9 of the Rajasthan Rent Control Act (for short called The Act) before the Rent Tribunal Kota (R¬84/2005) praying therein for respondents eviction from the tenanted suit premises. 6. The appellant claimed respondents eviction from the suit premises on the ground of her personal bona fide need for raising construction in the existing suit premises to be used for her children and for stay of appellants guest in the suit premises. 7. The respondent denied the appellants need and, inter alia, contended that the appellant is in possession of an alternative accommodation in the city and hence her alleged need set up in the eviction petition can be accomplished by using the alternative accommodation available in the city. 8. By order dated 8.2.2011, the Rent Tribunal dismissed the appellants eviction petition holding that appellants need can be accomplished with an alternative space available with her in the city. 9. The appellant (landlady) felt aggrieved and filed an appeal (144/2014) before the Appellate Tribunal. The Appellate Tribunal by order dated 12.2.2015 allowed the appeal, set aside the order of the Rent Tribunal, decreed the appellants eviction petition and passed the eviction decree against the respondent, in relation to the suit premises. 10. The respondent (tenant) felt aggrieved and filed writ petition before the High Court of Rajasthan (Jaipur). By impugned order, the learned Single Judge allowed the respondents writ petition and set aside the order of the Appellate Tribunal and restored the order of the Rent Tribunal which gives rise to filing of the special leave to appeal in this Court by the landlady. 11. So the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the respondents (tenants) writ petition thereby justified in setting aside the appellate order of the Rent Appellate Tribunal and restoring that of the Rent Tribunal. 12. Heard Dr. Manish Singhvi, learned counsel for the appellant and Mr. Purvish Jitendra Malkan, learned counsel for the respondent. 13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits. 14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need. The operative part of the High Court order reads as under:¬ Taking into consideration the fact aforesaid, I do not find any reason for Rent Appellate Tribunal for setting aside the order of the Rent Tribunal. The perusal of the impugned order shows a casual approach of the Rent Appellate Tribunal in reversing the finding of the Rent Tribunal, that too, without going into the issue of personal bonafide necessity. The Rent Appellate Tribunal was expected to first decide the issue as to whether respondent is having personal bonafide necessity or not. Accordingly, impugned order passed by the Rent Appellate Tribunal is set aside. (emphasis supplied) 15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law. 16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law. 17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal. 18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need. | 1[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits.14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need.15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law.16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law.17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal.18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need. | 1 | 976 | 325 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 02.01.2018 passed by the High Court of Rajasthan Bench at Jaipur in S.B. Civil Writ Petition No. 5403/2015 whereby the High Court has allowed the writ petition filed by the respondent herein. 3. The issue involved in the appeal is short, as also the facts of the case lie in a narrow compass, which would be clear from the narration infra. 4. The appellant is the applicant, whereas the respondent is the non¬applicant in the eviction petition filed by the appellant against the respondent before the Rent Control Tribunal, Rajasthan out of which this appeal arises. 5. The appellant ¬ a landlady of the suit premises filed the eviction petition against the respondent¬ tenant of the suit premises under Section 9 of the Rajasthan Rent Control Act (for short called The Act) before the Rent Tribunal Kota (R¬84/2005) praying therein for respondents eviction from the tenanted suit premises. 6. The appellant claimed respondents eviction from the suit premises on the ground of her personal bona fide need for raising construction in the existing suit premises to be used for her children and for stay of appellants guest in the suit premises. 7. The respondent denied the appellants need and, inter alia, contended that the appellant is in possession of an alternative accommodation in the city and hence her alleged need set up in the eviction petition can be accomplished by using the alternative accommodation available in the city. 8. By order dated 8.2.2011, the Rent Tribunal dismissed the appellants eviction petition holding that appellants need can be accomplished with an alternative space available with her in the city. 9. The appellant (landlady) felt aggrieved and filed an appeal (144/2014) before the Appellate Tribunal. The Appellate Tribunal by order dated 12.2.2015 allowed the appeal, set aside the order of the Rent Tribunal, decreed the appellants eviction petition and passed the eviction decree against the respondent, in relation to the suit premises. 10. The respondent (tenant) felt aggrieved and filed writ petition before the High Court of Rajasthan (Jaipur). By impugned order, the learned Single Judge allowed the respondents writ petition and set aside the order of the Appellate Tribunal and restored the order of the Rent Tribunal which gives rise to filing of the special leave to appeal in this Court by the landlady. 11. So the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the respondents (tenants) writ petition thereby justified in setting aside the appellate order of the Rent Appellate Tribunal and restoring that of the Rent Tribunal. 12. Heard Dr. Manish Singhvi, learned counsel for the appellant and Mr. Purvish Jitendra Malkan, learned counsel for the respondent. 13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits. 14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need. The operative part of the High Court order reads as under:¬ Taking into consideration the fact aforesaid, I do not find any reason for Rent Appellate Tribunal for setting aside the order of the Rent Tribunal. The perusal of the impugned order shows a casual approach of the Rent Appellate Tribunal in reversing the finding of the Rent Tribunal, that too, without going into the issue of personal bonafide necessity. The Rent Appellate Tribunal was expected to first decide the issue as to whether respondent is having personal bonafide necessity or not. Accordingly, impugned order passed by the Rent Appellate Tribunal is set aside. (emphasis supplied) 15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law. 16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law. 17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal. 18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need.
### Response:
1
### Explanation:
13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits.14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need.15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law.16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law.17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal.18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need.
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Tripurari Sharan & Another Vs. Ranjit Kumar Yadav & Others | choice college and subject which they could secure under the rule of reservation, the circular cannot be sustained. The circular, therefore, can be given effect only if the reserved category candidate qualifying on merit with general candidates consents to being considered as a general candidate on merit-cum-choice basis for allotment of college/institution and subject.”(emphasis supplied)M. Neethi Chandra (supra) was upheld by a three-Judge bench of this Court in Dr. Anil Kumar v. State of Bihar, (1998) 9 SCC 405 , but to the extent that it held that a MRC should not be forced to choose seat from the general category. However, it needs to be mentioned that M. Neethi Chandra (supra) may not be applicable to the facts of this case. In the case of M. Neethi Chandra (supra), this Court was concerned with a different circular altogether, i.e., Circular No. 11/K1 -1022/91-K20 (“Circular No. 20”), issued by the Government of Bihar, Department of Personnel and Administrative Reforms on 07.02.1992 on the subject of “provision for reservation for nominating (admission) of Scheduled Caste/Tribes/Backward class/Extremely Backward Class/Female into the Professional Training Institutes.” That circular was challenged on the basis that MRCs were not allowed to choose the seats kept reserved for the reserved category. Paragraph 6 of that circular reads as follows:“6. As there is provision in direct appointment to the effect that the candidates belonging to reserved classes, who are selected on the basis of merit, would not be adjusted against reserved seats, similarly maintaining the same arrangement here also the candidates selected on the basis of merit for admission into professional training institutes would not be adjusted against the reserved quota for the candidates of reserved classes.”The judgment of the High Court that was set aside by this Court in M. Neethi Chandra (supra) had devised a completely different way of conducting PG admissions, which was not at all akin to the present case. The High Court in the said matter has sought to fill up reserved category posts first and adjust any reserved category candidates not allotted a seat in the general category. This Court in M. Neethi Chandra (supra) summarized the method of allotment of seats adopted by the High Court thus,“To remove the anomalies, the High Court devised a method of allotment of seats by which the reserved seats are offered first (i.e. before the general seats are filled) to the candidates of the reserved category on merit, and after all the reserved seats are so filled up, all other qualifying candidates of the reserved category are "adjusted" against open seats in the general category along with the general merit candidates and offered seats on merit-cum- choice basis (see para 11 of the judgment).”12. In the matter on hand, it is not the case that any other candidate of the reserved category, other than the candidate taking up the MRC’s general category place in choosing general category seat, will be adjusted. Moreover this issue is not under challenge in the present case, as both sides are admittedly not contesting the right of a MRC to choose a seat earmarked for the reserved category. On the other hand, it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has got a right to choose a seat earmarked for reserved category/categories. However, they are only worried that the aggregate reservation should not exceed 50%.It follows from the cases cited above that the 50% reservation rule should not be breached under any circumstances. As mentioned supra, a MRC in medical admissions has more marks than the last general merit candidate, hence he shall be treated as a general category candidate. Only a choice of college seats in the reserved category is open to him. In this manner, the number of seats in each category remains constant and the upper limit of 50% reservation is not breached.13. It is clear from Ritesh R. Sah (supra), that in the case of admission to postgraduate medical institutions, a MRC who chooses to avail of the option of admission to a college with seats kept for the reserved category is deemed to have been admitted as an open category candidate. He continues to be open category candidate. There is no migration into the reserved category even if a MRC opts for a seat earmarked for reserved category candidates. The lowest-ranking candidates who qualified in the reserved category, cannot hence have option for colleges/seats in reserved category on account of the MRC’s choice, may be adjusted against the choices of college seats then available in the general category left over by MRC. However such reserved category candidates continue in reserved category, except for such option. Thus, by treating a MRC as a general category candidate, the number of reserved seats remains the same, and reservations do not exceed 50%. This is also consistent with the principles of equity. In view of the above, we could not find any reason to disagree with the conclusions reached by the full Bench of the High Court.14. In light of the cases discussed hereinabove, both questions are answered as follows:i) A MRC can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only.ii) Due to the MRC’s choice, one reserved category seat is occupied, and one seat among the choices available to general category candidates remains unoccupied. Consequently, one lesser-ranked reserved category candidate who had choices among the reserved category is affected as he does not get any choice anymore.To remedy the situation i.e. to provide the affected candidate a remedy, the 50th seat which would have been allotted to X – MRC, had he not opted for a seat meant for the reserved category to which he belongs, shall now be filled up by that candidate in the reserved category list who stands to lose out by the choice of the MRC.This leaves the percentage of reservation at 50% undisturbed.15 | 0[ds]7. Often, in a competitive examination held for the purpose of admission in technical and medical institutions etc. some candidates belonging to reserved category/categories, qualify for the higher ranking on the basis of their own merit and depending on their performance in the common entrance test, are placed in the general merit list. Such class of candidates belonging to reserved categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate.This court has repeatedly including the judgment in the case of Indra Sawhney (supra), has concluded that the aggregate reservation should not exceed 50%. Therefore, even when a MRC opts for a seat reserved for reserved category candidates, caution has to be exercised to maintain the reservation to 50%. So also it is not open for the authorities to deny a MRC a seat in the college of his preference based on his merit, if such seat is available at the relevant point of time and the same is reserved for candidates of the reserved category to which the MRC belongs. This is because there may be instances where a MRC may not get a seat in the institution of his choice on the basis of his own merit in the general merit. Under such circumstances, he may opt to be treated notionally as a candidate belonging to the reserved category only for the purpose of getting a seat in the college reserved for reserved category students. If such MRC is to be placed in the reserved merit list of his category, he would be ranking high and may get better choice of institution or course. A MRC cannot be placed in a disadvantageous position by not permitting him to be treated as reserved candidate, as that would amount to making him suffer for his better performance in the competitivefrom the year 1996, the law is well settled that the provisions should be so made that they will not work out to the disadvantage of a MRC and he would not be placed at a more disadvantageous position than the less meritorious reserved category candidates. Aforementioned objective can be achieved if, after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category, the cases of less meritorious reserved category candidates are considered.In other words, the reserved category candidate is entitled to admission on the basis of his merit, and he will have the option of taking admission to the colleges where a specified number of seats are kept reserved for the reserved category. However, while computing the percentage of reservation, he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.In the matter on hand, it is not the case that any other candidate of the reserved category, other than the candidate taking up thegeneral category place in choosing general category seat, will be adjusted. Moreover this issue is not under challenge in the present case, as both sides are admittedly not contesting the right of a MRC to choose a seat earmarked for the reserved category. On the other hand, it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has got a right to choose a seat earmarked for reserved category/categories. However, they are only worried that the aggregate reservation should not exceed 50%.It follows from the cases cited above that the 50% reservation rule should not be breached under any circumstances. As mentioned supra, a MRC in medical admissions has more marks than the last general merit candidate, hence he shall be treated as a general category candidate. Only a choice of college seats in the reserved category is open to him. In this manner, the number of seats in each category remains constant and the upper limit of 50% reservation is not breached.13. It is clear from Ritesh R. Sah (supra), that in the case of admission to postgraduate medical institutions, a MRC who chooses to avail of the option of admission to a college with seats kept for the reserved category is deemed to have been admitted as an open category candidate. He continues to be open category candidate. There is no migration into the reserved category even if a MRC opts for a seat earmarked for reserved category candidates. Thecandidates who qualified in the reserved category, cannot hence have option for colleges/seats in reserved category on account of thechoice, may be adjusted against the choices of college seats then available in the general category left over by MRC. However such reserved category candidates continue in reserved category, except for such option. Thus, by treating a MRC as a general category candidate, the number of reserved seats remains the same, and reservations do not exceed 50%. This is also consistent with the principles of equity. In view of the above, we could not find any reason to disagree with the conclusions reached by the full Bench of the High Court.14. In light of the cases discussed hereinabove, both questions are answered asA MRC can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only.ii) Due to thechoice, one reserved category seat is occupied, and one seat among the choices available to general category candidates remains unoccupied. Consequently, onereserved category candidate who had choices among the reserved category is affected as he does not get any choiceremedy the situation i.e. to provide the affected candidate a remedy, the 50th seat which would have been allotted to X – MRC, had he not opted for a seat meant for the reserved category to which he belongs, shall now be filled up by that candidate in the reserved category list who stands to lose out by the choice of the MRC.This leaves the percentage of reservation at 50% undisturbed. | 0 | 6,497 | 1,160 | ### Instruction:
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choice college and subject which they could secure under the rule of reservation, the circular cannot be sustained. The circular, therefore, can be given effect only if the reserved category candidate qualifying on merit with general candidates consents to being considered as a general candidate on merit-cum-choice basis for allotment of college/institution and subject.”(emphasis supplied)M. Neethi Chandra (supra) was upheld by a three-Judge bench of this Court in Dr. Anil Kumar v. State of Bihar, (1998) 9 SCC 405 , but to the extent that it held that a MRC should not be forced to choose seat from the general category. However, it needs to be mentioned that M. Neethi Chandra (supra) may not be applicable to the facts of this case. In the case of M. Neethi Chandra (supra), this Court was concerned with a different circular altogether, i.e., Circular No. 11/K1 -1022/91-K20 (“Circular No. 20”), issued by the Government of Bihar, Department of Personnel and Administrative Reforms on 07.02.1992 on the subject of “provision for reservation for nominating (admission) of Scheduled Caste/Tribes/Backward class/Extremely Backward Class/Female into the Professional Training Institutes.” That circular was challenged on the basis that MRCs were not allowed to choose the seats kept reserved for the reserved category. Paragraph 6 of that circular reads as follows:“6. As there is provision in direct appointment to the effect that the candidates belonging to reserved classes, who are selected on the basis of merit, would not be adjusted against reserved seats, similarly maintaining the same arrangement here also the candidates selected on the basis of merit for admission into professional training institutes would not be adjusted against the reserved quota for the candidates of reserved classes.”The judgment of the High Court that was set aside by this Court in M. Neethi Chandra (supra) had devised a completely different way of conducting PG admissions, which was not at all akin to the present case. The High Court in the said matter has sought to fill up reserved category posts first and adjust any reserved category candidates not allotted a seat in the general category. This Court in M. Neethi Chandra (supra) summarized the method of allotment of seats adopted by the High Court thus,“To remove the anomalies, the High Court devised a method of allotment of seats by which the reserved seats are offered first (i.e. before the general seats are filled) to the candidates of the reserved category on merit, and after all the reserved seats are so filled up, all other qualifying candidates of the reserved category are "adjusted" against open seats in the general category along with the general merit candidates and offered seats on merit-cum- choice basis (see para 11 of the judgment).”12. In the matter on hand, it is not the case that any other candidate of the reserved category, other than the candidate taking up the MRC’s general category place in choosing general category seat, will be adjusted. Moreover this issue is not under challenge in the present case, as both sides are admittedly not contesting the right of a MRC to choose a seat earmarked for the reserved category. On the other hand, it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has got a right to choose a seat earmarked for reserved category/categories. However, they are only worried that the aggregate reservation should not exceed 50%.It follows from the cases cited above that the 50% reservation rule should not be breached under any circumstances. As mentioned supra, a MRC in medical admissions has more marks than the last general merit candidate, hence he shall be treated as a general category candidate. Only a choice of college seats in the reserved category is open to him. In this manner, the number of seats in each category remains constant and the upper limit of 50% reservation is not breached.13. It is clear from Ritesh R. Sah (supra), that in the case of admission to postgraduate medical institutions, a MRC who chooses to avail of the option of admission to a college with seats kept for the reserved category is deemed to have been admitted as an open category candidate. He continues to be open category candidate. There is no migration into the reserved category even if a MRC opts for a seat earmarked for reserved category candidates. The lowest-ranking candidates who qualified in the reserved category, cannot hence have option for colleges/seats in reserved category on account of the MRC’s choice, may be adjusted against the choices of college seats then available in the general category left over by MRC. However such reserved category candidates continue in reserved category, except for such option. Thus, by treating a MRC as a general category candidate, the number of reserved seats remains the same, and reservations do not exceed 50%. This is also consistent with the principles of equity. In view of the above, we could not find any reason to disagree with the conclusions reached by the full Bench of the High Court.14. In light of the cases discussed hereinabove, both questions are answered as follows:i) A MRC can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only.ii) Due to the MRC’s choice, one reserved category seat is occupied, and one seat among the choices available to general category candidates remains unoccupied. Consequently, one lesser-ranked reserved category candidate who had choices among the reserved category is affected as he does not get any choice anymore.To remedy the situation i.e. to provide the affected candidate a remedy, the 50th seat which would have been allotted to X – MRC, had he not opted for a seat meant for the reserved category to which he belongs, shall now be filled up by that candidate in the reserved category list who stands to lose out by the choice of the MRC.This leaves the percentage of reservation at 50% undisturbed.15
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categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate.This court has repeatedly including the judgment in the case of Indra Sawhney (supra), has concluded that the aggregate reservation should not exceed 50%. Therefore, even when a MRC opts for a seat reserved for reserved category candidates, caution has to be exercised to maintain the reservation to 50%. So also it is not open for the authorities to deny a MRC a seat in the college of his preference based on his merit, if such seat is available at the relevant point of time and the same is reserved for candidates of the reserved category to which the MRC belongs. This is because there may be instances where a MRC may not get a seat in the institution of his choice on the basis of his own merit in the general merit. Under such circumstances, he may opt to be treated notionally as a candidate belonging to the reserved category only for the purpose of getting a seat in the college reserved for reserved category students. If such MRC is to be placed in the reserved merit list of his category, he would be ranking high and may get better choice of institution or course. A MRC cannot be placed in a disadvantageous position by not permitting him to be treated as reserved candidate, as that would amount to making him suffer for his better performance in the competitivefrom the year 1996, the law is well settled that the provisions should be so made that they will not work out to the disadvantage of a MRC and he would not be placed at a more disadvantageous position than the less meritorious reserved category candidates. Aforementioned objective can be achieved if, after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category, the cases of less meritorious reserved category candidates are considered.In other words, the reserved category candidate is entitled to admission on the basis of his merit, and he will have the option of taking admission to the colleges where a specified number of seats are kept reserved for the reserved category. However, while computing the percentage of reservation, he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.In the matter on hand, it is not the case that any other candidate of the reserved category, other than the candidate taking up thegeneral category place in choosing general category seat, will be adjusted. Moreover this issue is not under challenge in the present case, as both sides are admittedly not contesting the right of a MRC to choose a seat earmarked for the reserved category. On the other hand, it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has got a right to choose a seat earmarked for reserved category/categories. However, they are only worried that the aggregate reservation should not exceed 50%.It follows from the cases cited above that the 50% reservation rule should not be breached under any circumstances. As mentioned supra, a MRC in medical admissions has more marks than the last general merit candidate, hence he shall be treated as a general category candidate. Only a choice of college seats in the reserved category is open to him. In this manner, the number of seats in each category remains constant and the upper limit of 50% reservation is not breached.13. It is clear from Ritesh R. Sah (supra), that in the case of admission to postgraduate medical institutions, a MRC who chooses to avail of the option of admission to a college with seats kept for the reserved category is deemed to have been admitted as an open category candidate. He continues to be open category candidate. There is no migration into the reserved category even if a MRC opts for a seat earmarked for reserved category candidates. Thecandidates who qualified in the reserved category, cannot hence have option for colleges/seats in reserved category on account of thechoice, may be adjusted against the choices of college seats then available in the general category left over by MRC. However such reserved category candidates continue in reserved category, except for such option. Thus, by treating a MRC as a general category candidate, the number of reserved seats remains the same, and reservations do not exceed 50%. This is also consistent with the principles of equity. In view of the above, we could not find any reason to disagree with the conclusions reached by the full Bench of the High Court.14. In light of the cases discussed hereinabove, both questions are answered asA MRC can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only.ii) Due to thechoice, one reserved category seat is occupied, and one seat among the choices available to general category candidates remains unoccupied. Consequently, onereserved category candidate who had choices among the reserved category is affected as he does not get any choiceremedy the situation i.e. to provide the affected candidate a remedy, the 50th seat which would have been allotted to X – MRC, had he not opted for a seat meant for the reserved category to which he belongs, shall now be filled up by that candidate in the reserved category list who stands to lose out by the choice of the MRC.This leaves the percentage of reservation at 50% undisturbed.
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Energy Watchdog Vs. Central Electricity Regulatory Commission And Ors. Etc | of increased cost of power due to import of coal/e-auction and its impact on the tariff of concluded PPAs were also discussed and CERCs advice sought. 2. After considering all aspects and the advice of CERC in this regard, Government has decided the following in June 2013: i) taking into account the overall domestic availability and actual requirements, FSAs to be signed for domestic coal component for the levy of disincentive at the quantity of 65%, 65%, 67% and 75% of Annual Contracted Quantity (ACQ) for the remaining four years of the 12th Plan. ii) to meet its balance FSA obligations, CIL may import coal and supply the same to the willing TPPs on cost plus basis. TPPs may also import coal themselves if they so opt. iii) higher cost of imported coal to be considered for pass through as per modalities suggested by CERC. 3. Ministry of Coal vide letter dated 26th July 2013 has notified the changes in the New Coal Distribution Policy (NCDP) as approved by the CCEA in relation to be coal supply for the next four years of the 12th Plan (copy enclosed). 4. As per decision of the Government, the higher cost of import/market based e-auction coal be considered for being made a pass through on a case to case basis by CERC/SERC to the extent of shortfall in the quantity indicated in the LoA/FSA and the CIL supply of domestic coal which would be minimum of 65%, 65%, 67% and 75% of LOA for the remaining four years of the 12th Plan for the already concluded PPAs based on tariff based competitive bidding. 5. The ERCs are advised to consider the request of individual power producers in this regard as per due process on a case to case basis in public interest. The Appropriate Commissions are requested to take immediate steps for the implementation of the above decision of the Government. This issues with the approval of MOS(P)I/C. Encl: as above Yours faithfully, Sd/- (V.Apparao) Director This is further reflected in the revised tariff policy dated 28th January, 2016, which in paragraph 1.1 states as under : 1.1 In compliance with Section 3 of the Electricity Act 2003, the Central Government notified the Tariff Policy on 6th January, 2006. Further amendments to the Tariff Policy were notified on 31st March, 2008, 20th January, 2011 and 8th July, 2011. In exercise of powers conferred under Section 3(3) of Electricity Act, 2003, the Central Government hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India. Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6th January, 2006 and amendments made thereunder, shall, in so far as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy. Clause 6.1 states: 6.1 Procurement of Power As stipulated in para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements. However, some of the competitively bid projects as per the guidelines dated 19th January, 2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-a-vis the assured quantity or quantity indicated in Letter of Assurance/FSA the cost of imported/market based e-auction coal procured for making up the shortfall, shall be considered for being made a pass through by Appropriate Commission on a case to case basis, as per advisory issued by Ministry of Power vide OM NO.FU-12/2011-IPC (Vol-III) dated 31.7.2013. Both the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would. 54. However, Shri Ramachandran, learned senior counsel for the appellants, argued that the policy dated 18th October, 2007 was announced even before the effective date of the PPAs, and made it clear to all generators that coal may not be given to the extent of the entire quantity allocated. We are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the same. | 1[ds]20. The appellants have argued before us that the expression "composite scheme" mentioned in Section 79(1) must necessarily be a scheme in which there is uniformity of tariff under a PPA where there is generation and sale of electricity in more than one State. It is not enough that generation and sale of electricity in more than one State be the subject matter of one or more PPAs, but that something more is necessary, namely, that there must be a composite scheme for the same.22. The scheme that emerges from these Sections is that whenever there ise generation or supply of electricity, it is the Central Government that is involved, and whenever there ise generation or supply of electricity, the State Government or the State Commission is involved. This is the precise scheme of the entire Act, including Sections 79 and 86. It will be seen that Section 79(1) itself ins (c), (d) and (e) speaks ofe transmission ande operations. This is to be contrasted with Section 86 which deals with functions of the State Commission which uses the expression "within the State"; ins (a), (b), and (d), and; ine (c). This being the case, it is clear that the PPA, which deals with generation and supply of electricity, will either have to be governed by the State Commission or the Central Commission. The State Commissions jurisdiction is only where generation and supply takes place within the State. On the other hand, the moment generation and sale takes place in more than one State, the Central Commission becomes the appropriate Commission under the Act. What is important to remember is that if we were to accept the argument on behalf of the appellant, and we were to hold in the Adani case that there is no composite scheme for generation and sale, as argued by the appellant, it would be clear that neither Commission would have jurisdiction, something which would lead to absurdity. Since generation and sale of electricity is in more than one State obviously Section 86 does not get attracted. This being the case, we are constrained to observe that the expression "composite scheme" does not mean anything more than a scheme for generation and sale of electricity in more than one State25. We must also hasten to add that the appellants argument that there must be commonality and uniformity in tariff for a "composite scheme" does not follow from the Section27. That this definition is an important aid to the construction of Section 79(1)(b) cannot be doubted and, according to us, correctly brings out the meaning of this expression as meaning nothing more than a scheme by a generating company for generation and sale of electricity in more than one State. Section 64(5) has been relied upon by the Appellant as an indicator that the State Commission has jurisdiction even in cases where tariff fore supply is involved. This provision begins with ae clause which would indicate that in all cases involvinge supply, transmission, or wheeling of electricity, the Central Commission alone has jurisdiction. In fact this further supports the case of the Respondents. Section 64(5) can only apply if, the jurisdiction otherwise being with the Central Commission alone, by application of the parties concerned, jurisdiction is to be given to the State Commission having jurisdiction in respect of the licensee who intends to distribute and make payment for electricity. We, therefore, hold that the Central Commission had the necessary jurisdiction to embark upon the issues raised in the present casesSince the appellant was not desirous of seeking a declaration that the appellant is relieved of the obligation of performing the contract in question, the appellant is entitled to argue force majeure or change of law in support of the Commissions order of 21st February, 2014, which quantified compensatory tariff, the correctness of which is under challenge in Appeal Nos.98 and 116 of 2014. This being the case, it is clear that this Court did not give any truncated right to argue force majeure or change of law. This Court explicitly stated that both force majeure and change of law can be argued in all its plenitude to support an order quantifying compensatory tariff so long as the appellants do not claim that they are relieved of performance of the PPAs altogether. This being the case, we are of the view that the preliminary submission of the appellant before us is without any force. Accordingly, the Appellate Tribunal rightly went into force majeure and change of law40. It is clear from the above that the doctrine of frustration cannot apply to these cases as the fundamental basis of the PPAs remains unaltered. Nowhere do the PPAs state that coal is to be procured only from Indonesia at a particular price. In fact, it is clear on a reading of the PPA as a whole that the price payable for the supply of coal is entirely for the person who sets up the power plant to bear. The fact that the fuel supply agreement has to be appended to the PPA is only to indicate that the raw material for the working of the plant is there and is in order. It is clear that an unexpected rise in the price of coal will not absolve the generating companies from performing their part of the contract for the very good reason that when they submitted their bids, this was a risk they knowingly took. We are of the view that the mere fact that the bid may bee does not mean that the respondents are precluded from raising the plea of frustration, if otherwise it is available in law and can be pleaded by them. But the fact that ae tariff has been paid for, for example, in the Adani case, is a factor which may be taken into account only to show that the risk of supplying electricity at the tariff indicated was upon the generating company43. First and foremost, the respondents are correct in stating that the force majeure clause does not exhaust the possibility of unforeseen events occurring outside natural and/orl events. But the thrust of their argument was really that so long as their performance is hindered by an unforeseen event, the clause applies45. We are, therefore, of the view that neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated. Consequently, we are of the view that neither clause 12.3 nor 12.7, referable to Section 32 of the Contract Act, will apply so as to enable the grant of compensatory tariff to the respondents. Dr. Singhvi, however, argued that even if clause 12 is held inapplicable, the law laid down on frustration under Section 56 will apply so as to give the respondents the necessary relief on the ground of force majeure. Having once held that clause 12.4 applies as a result of which rise in the price of fuel cannot be regarded as a force majeure event contractually, it is difficult to appreciate a submission that in the alternative Section 56 will apply. As has been held in particular, in the Satyabrata Ghose case, when a contract contains a force majeure clause which on construction by the Court is held attracted to the facts of the case, Section 56 can have no application. On this short ground, this alternative submission stands disposed ofFrom a reading of the above, it is clear that if otherwise the expression "anylaw"in clause 13when read with the definition of; and"Electricity Laws" leads unequivocally to the conclusion that it refers only to the law of India, it would be unsafe to rely upon the other clauses of the agreement where Indian law is specifically mentioned to negate this conclusionWe are afraid, we cannot agree with this argument. There are many PPAs entered into with different generators. Some generators may source fuel only from India. Others, as is the case in the Adani Haryana matter, would source fuel to the extent of 70% from India and 30% from abroad, whereas other generators, as in the case of Gujarat Adani and the Coastal case, would source coal wholly from abroad. The meaning of the expression "change inlaw"in clause 13cannot depend upon whether coal is sourced in a particular PPA from outside India or within India. The meaning will have to remain the same whether coal is sourced wholly in India, partly in India and partly from outside, or wholly from outside. This being the case, the meaning of the expression "anylaw"in clause 13cannot possibly be interpreted in the manner suggested by the respondents. English judgments and authorities were cited for the proposition that if performance of a contract is to be done in a foreign country, what would be relevant would be foreign law. This would be true as a general statement of law, but for the reason given above, would not apply to the PPAs in the present caseBoth the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents providesin clause13.2that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly wouldWe are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the samesame.32. "Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract. | 1 | 20,953 | 2,116 | ### Instruction:
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of increased cost of power due to import of coal/e-auction and its impact on the tariff of concluded PPAs were also discussed and CERCs advice sought. 2. After considering all aspects and the advice of CERC in this regard, Government has decided the following in June 2013: i) taking into account the overall domestic availability and actual requirements, FSAs to be signed for domestic coal component for the levy of disincentive at the quantity of 65%, 65%, 67% and 75% of Annual Contracted Quantity (ACQ) for the remaining four years of the 12th Plan. ii) to meet its balance FSA obligations, CIL may import coal and supply the same to the willing TPPs on cost plus basis. TPPs may also import coal themselves if they so opt. iii) higher cost of imported coal to be considered for pass through as per modalities suggested by CERC. 3. Ministry of Coal vide letter dated 26th July 2013 has notified the changes in the New Coal Distribution Policy (NCDP) as approved by the CCEA in relation to be coal supply for the next four years of the 12th Plan (copy enclosed). 4. As per decision of the Government, the higher cost of import/market based e-auction coal be considered for being made a pass through on a case to case basis by CERC/SERC to the extent of shortfall in the quantity indicated in the LoA/FSA and the CIL supply of domestic coal which would be minimum of 65%, 65%, 67% and 75% of LOA for the remaining four years of the 12th Plan for the already concluded PPAs based on tariff based competitive bidding. 5. The ERCs are advised to consider the request of individual power producers in this regard as per due process on a case to case basis in public interest. The Appropriate Commissions are requested to take immediate steps for the implementation of the above decision of the Government. This issues with the approval of MOS(P)I/C. Encl: as above Yours faithfully, Sd/- (V.Apparao) Director This is further reflected in the revised tariff policy dated 28th January, 2016, which in paragraph 1.1 states as under : 1.1 In compliance with Section 3 of the Electricity Act 2003, the Central Government notified the Tariff Policy on 6th January, 2006. Further amendments to the Tariff Policy were notified on 31st March, 2008, 20th January, 2011 and 8th July, 2011. In exercise of powers conferred under Section 3(3) of Electricity Act, 2003, the Central Government hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India. Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6th January, 2006 and amendments made thereunder, shall, in so far as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy. Clause 6.1 states: 6.1 Procurement of Power As stipulated in para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements. However, some of the competitively bid projects as per the guidelines dated 19th January, 2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-a-vis the assured quantity or quantity indicated in Letter of Assurance/FSA the cost of imported/market based e-auction coal procured for making up the shortfall, shall be considered for being made a pass through by Appropriate Commission on a case to case basis, as per advisory issued by Ministry of Power vide OM NO.FU-12/2011-IPC (Vol-III) dated 31.7.2013. Both the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would. 54. However, Shri Ramachandran, learned senior counsel for the appellants, argued that the policy dated 18th October, 2007 was announced even before the effective date of the PPAs, and made it clear to all generators that coal may not be given to the extent of the entire quantity allocated. We are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the same.
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### Explanation:
that when they submitted their bids, this was a risk they knowingly took. We are of the view that the mere fact that the bid may bee does not mean that the respondents are precluded from raising the plea of frustration, if otherwise it is available in law and can be pleaded by them. But the fact that ae tariff has been paid for, for example, in the Adani case, is a factor which may be taken into account only to show that the risk of supplying electricity at the tariff indicated was upon the generating company43. First and foremost, the respondents are correct in stating that the force majeure clause does not exhaust the possibility of unforeseen events occurring outside natural and/orl events. But the thrust of their argument was really that so long as their performance is hindered by an unforeseen event, the clause applies45. We are, therefore, of the view that neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated. Consequently, we are of the view that neither clause 12.3 nor 12.7, referable to Section 32 of the Contract Act, will apply so as to enable the grant of compensatory tariff to the respondents. Dr. Singhvi, however, argued that even if clause 12 is held inapplicable, the law laid down on frustration under Section 56 will apply so as to give the respondents the necessary relief on the ground of force majeure. Having once held that clause 12.4 applies as a result of which rise in the price of fuel cannot be regarded as a force majeure event contractually, it is difficult to appreciate a submission that in the alternative Section 56 will apply. As has been held in particular, in the Satyabrata Ghose case, when a contract contains a force majeure clause which on construction by the Court is held attracted to the facts of the case, Section 56 can have no application. On this short ground, this alternative submission stands disposed ofFrom a reading of the above, it is clear that if otherwise the expression "anylaw"in clause 13when read with the definition of; and"Electricity Laws" leads unequivocally to the conclusion that it refers only to the law of India, it would be unsafe to rely upon the other clauses of the agreement where Indian law is specifically mentioned to negate this conclusionWe are afraid, we cannot agree with this argument. There are many PPAs entered into with different generators. Some generators may source fuel only from India. Others, as is the case in the Adani Haryana matter, would source fuel to the extent of 70% from India and 30% from abroad, whereas other generators, as in the case of Gujarat Adani and the Coastal case, would source coal wholly from abroad. The meaning of the expression "change inlaw"in clause 13cannot depend upon whether coal is sourced in a particular PPA from outside India or within India. The meaning will have to remain the same whether coal is sourced wholly in India, partly in India and partly from outside, or wholly from outside. This being the case, the meaning of the expression "anylaw"in clause 13cannot possibly be interpreted in the manner suggested by the respondents. English judgments and authorities were cited for the proposition that if performance of a contract is to be done in a foreign country, what would be relevant would be foreign law. This would be true as a general statement of law, but for the reason given above, would not apply to the PPAs in the present caseBoth the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents providesin clause13.2that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly wouldWe are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the samesame.32. "Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract.
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Dr. Prem Chand Tandon Vs. Krishna Chand Kapoor | has relied on the finding of the trial court that Smt. Dhanta Devi had enough funds for making the advances amounting to Rs. 25,000/- for which promissory notes were executed by the respondent and which formed the consideration for the usfructuary mortgage.8. We have given in detail the various transactions entered into by the respondent as also the transfers made by him most of which were in favour Smt. Dhanta Devi before and after the usufructuary mortgage deed was executed in May 1921. There can be no manner of doubt that the respondent was carrying on speculative transactions at the Bombay Stock Exchange. It appears that either at the initiative of Smt. Dhanta Devi which is not very likely or on his own the respondent took the precaution of transferring a number of his assests including the car to Smt. Dhanta Devi apparently to escape the payment of debts to the creditors. The suit of Madan was already pending and the respondent was fully aware that he would ultimately have to pay the monies of the Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/- on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/- Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/- to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/- for a period of 60 years. It was difficult to believe that the respondent would have entered into such a transaction in view of his financial position in the year 1921. It was equally not likely that a person dealing in shares who would require ready money would lock up his assests like the property in dispute in a transaction which was such that the mortgage could not be redeemed before the expiry of the period of sixty years. The mortgage, therefore, was executed only with an ulterior purpose, it being wholly fictitious.10. The other question which fell to be examined was the question of possession over Krishna Bhavan. There was a good deal of evidence which was discussed by Jagat Narain J. showing that the respondent was in possession of Krishna Bhavan as owner even after the execution of the usufructuary mortgage and Smt. Dhanta Devi occupied merely a portion of it for her residence. The case put forward by the appellant in the plaint as well as in his statement in court that Smt. Dhanta Devi was realizing rent from all the tenants had been proved to be false. We have been taken through some of the documentary evidence on the point of possession and it appears to us that the view of Modi J., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld. | 0[ds]8. We have given in detail the various transactions entered into by the respondent as also the transfers made by him most of which were in favour Smt. Dhanta Devi before and after the usufructuary mortgage deed was executed in May 1921. There can be no manner of doubt that the respondent was carrying on speculative transactions at the Bombay Stock Exchange. It appears that either at the initiative of Smt. Dhanta Devi which is not very likely or on his own the respondent took the precaution of transferring a number of his assests including the car to Smt. Dhanta Devi apparently to escape the payment of debts to the creditors. The suit of Madan was already pending and the respondent was fully aware that he would ultimately have to pay the monies of the Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/for a period of 60 years. It was difficult to believe that the respondent would have entered into such a transaction in view of his financial position in the year 1921. It was equally not likely that a person dealing in shares who would require ready money would lock up his assests like the property in dispute in a transaction which was such that the mortgage could not be redeemed before the expiry of the period of sixty years. The mortgage, therefore, was executed only with an ulterior purpose, it being wholly fictitious.10.The other question which fell to be examined was the question of possession over Krishna Bhavan.There was a good deal of evidence which was discussed by Jagat Narain J. showing that the respondent was in possession of Krishna Bhavan as owner even after the execution of the usufructuary mortgage and Smt. Dhanta Devi occupied merely a portion of it for her residence. The case put forward by the appellant in the plaint as well as in his statement in court that Smt. Dhanta Devi was realizing rent from all the tenants had been proved to be false. We have been taken through some of the documentary evidence on the point of possession and it appears to us that the view of Modi J., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld. | 0 | 3,337 | 1,010 | ### 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:
has relied on the finding of the trial court that Smt. Dhanta Devi had enough funds for making the advances amounting to Rs. 25,000/- for which promissory notes were executed by the respondent and which formed the consideration for the usfructuary mortgage.8. We have given in detail the various transactions entered into by the respondent as also the transfers made by him most of which were in favour Smt. Dhanta Devi before and after the usufructuary mortgage deed was executed in May 1921. There can be no manner of doubt that the respondent was carrying on speculative transactions at the Bombay Stock Exchange. It appears that either at the initiative of Smt. Dhanta Devi which is not very likely or on his own the respondent took the precaution of transferring a number of his assests including the car to Smt. Dhanta Devi apparently to escape the payment of debts to the creditors. The suit of Madan was already pending and the respondent was fully aware that he would ultimately have to pay the monies of the Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/- on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/- Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/- to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/- for a period of 60 years. It was difficult to believe that the respondent would have entered into such a transaction in view of his financial position in the year 1921. It was equally not likely that a person dealing in shares who would require ready money would lock up his assests like the property in dispute in a transaction which was such that the mortgage could not be redeemed before the expiry of the period of sixty years. The mortgage, therefore, was executed only with an ulterior purpose, it being wholly fictitious.10. The other question which fell to be examined was the question of possession over Krishna Bhavan. There was a good deal of evidence which was discussed by Jagat Narain J. showing that the respondent was in possession of Krishna Bhavan as owner even after the execution of the usufructuary mortgage and Smt. Dhanta Devi occupied merely a portion of it for her residence. The case put forward by the appellant in the plaint as well as in his statement in court that Smt. Dhanta Devi was realizing rent from all the tenants had been proved to be false. We have been taken through some of the documentary evidence on the point of possession and it appears to us that the view of Modi J., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld.
### Response:
0
### Explanation:
8. We have given in detail the various transactions entered into by the respondent as also the transfers made by him most of which were in favour Smt. Dhanta Devi before and after the usufructuary mortgage deed was executed in May 1921. There can be no manner of doubt that the respondent was carrying on speculative transactions at the Bombay Stock Exchange. It appears that either at the initiative of Smt. Dhanta Devi which is not very likely or on his own the respondent took the precaution of transferring a number of his assests including the car to Smt. Dhanta Devi apparently to escape the payment of debts to the creditors. The suit of Madan was already pending and the respondent was fully aware that he would ultimately have to pay the monies of the Tate Power C. Ltd., on account of the liability of the shares which he had purchased. He might also be anticipating other indebtedness which would be incurred in the course of speculative business which he was carrying on. We are wholly unable to understand why the respondent transferred even the car on April 4, 1921 in favour of Smt. Dhanta Devi. It has not been suggested on his behalf that his was done to pay off any debts due to her. This was done immediately before the usufructuary mortgage was executed apart from the transfer of another debt of Rs. 3,000/on May 16, 1921. The events which followed the transfer of the usufructuay mortgage and in particular the fact that two wholly fictitions documents Exts. 8 an 9 were executed, even though it was some years later, certainly reflect very adversely no the conduct of the respondent. Smt. Dhanta Devi was also a party to those documents and it is difficult to believe that all these transfers including the transfer preceding the execution of the usufructuary mortgage were made without her knowledge and consent. The conclusion, therefore, is irresistible that prior and subsequent to the execution of the usufructuary mortgage deed there was some scheme or understanding between the respondent and Dhanta Devi by which all these transfers were made with a view to avoiding payment of debts by the respondent.9. As regards the consideration for the usufructuary mortgage the promissory notes were never produced. It is true that there was some evidence that Smt. Dhanta Devi had received certain insurance monies on the death of her husband but the aggregate of those amounts did not exceed Rs. 13,000/Even if she was possessed of some jewellery and other funds it is difficult to believe that she would have advanced such a substantial amount of Rs. 25,000/to the respondent by means of two promissory notes on December 10, 1919 and on March 17, 1920. It would further appear and some stress has been laid on this aspect by Jagat Narain J., in his judgment that the financial position of the respondent at the time the usufructuary mortgage deed was executed was fairly good considering the various articles like diamonds and the car which he had purchased apart from the shares. The house at Ajmer and the Ville Parle land had been mortgaged with possession for Rupees 25,000/for a period of 60 years. It was difficult to believe that the respondent would have entered into such a transaction in view of his financial position in the year 1921. It was equally not likely that a person dealing in shares who would require ready money would lock up his assests like the property in dispute in a transaction which was such that the mortgage could not be redeemed before the expiry of the period of sixty years. The mortgage, therefore, was executed only with an ulterior purpose, it being wholly fictitious.10.The other question which fell to be examined was the question of possession over Krishna Bhavan.There was a good deal of evidence which was discussed by Jagat Narain J. showing that the respondent was in possession of Krishna Bhavan as owner even after the execution of the usufructuary mortgage and Smt. Dhanta Devi occupied merely a portion of it for her residence. The case put forward by the appellant in the plaint as well as in his statement in court that Smt. Dhanta Devi was realizing rent from all the tenants had been proved to be false. We have been taken through some of the documentary evidence on the point of possession and it appears to us that the view of Modi J., and Jagat Narain J. that even after the execution of the mortgage deed the respondent continued to remain in effective possession of a very large portion of Krishna Bhavan and received its rents and profits for a long period during the lifetime of Smt. Dhanta Devi was correct. If that be so it becomes apparent that Dhanta Devi never took possession of the property in dispute pursuant to the usufructuary mortgage deed executed by the respondent in her favour. It appears that even as the widow of her husband Mool Chand Kapoor she had a right of residence in the house and it was largely in that capacity that she continued to keep a portion of it or received rent form some of the tenants.11. Ordinarily this court is most reluctant to interfere with the finding of fact of the High Court or appreciation of evidence by it, but we have gone into most of the material circumstances and considered the important pieces of evidence because of the difference of opinion among the learned Judges of the High Court . However, for the reasons that have been indicated above we are satisfied that the conclusion of Modi and Jagat Narain J J. were correct and must be upheld.
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Employees' State Insurance Corporation, Chandigarh Vs. Gurdial Singh and Others | 1. This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana affirming the decision of the Single Judge in a writ petition. The short question that came before the High Court for consideration was whether the Directors of a private limited company had personal liability to meet the demand of contribution arising under the Employees State Insurance Act, 1948. Their liability depended upon the correct interpretation of the term principal employer appearing in Section 2(17) of the Act. The definition reads thus"2.(17) principal employer means - (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such government in this behalf or where no authority is so appointed, the Head of the Department;(iii) in any other establishment, any person responsible for the supervisor and control of the establishment;" * 2. There is no dispute that clause (ii) does not apply. What is relevant to consider is whether the liability of Directors is covered under clause (i) and if it is, clause (iii) being residuary would not apply and in case it is not covered by clause (i), the matter would be regulated by clause (iii). Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It in also not in dispute that it had a manager too. In view of the clear terms in the definition, we are of the view that Directors did not come within clause (i) but the occupier being there, clause (i) applied and in that view of the matter, clause (iii) could have no application3. Learned counsel for the appellant relied upon two decisions as precedents. In the case of the Bombay High Court in Suresh Tulsidas Kailachand v. Collector of Bombay [ 1980 (2) LLJ 81 [Ed. : This case has been reversed in Suresh Tulsidas Kailachand v. Collector of Bombay, 1984 Lab IC 1614 (Bom) (DB) : 1984 (1) LLN 312]], the court found liability by relying upon clause (i) of the definition without first ascertaining whether the matter was covered by clause (i). Now on our finding in the instant case that clause (i) applied, we do not have to go to clause (iii) where the liability is of the person who is responsible for the supervision and control of the establishment. The other decision on which reliance has been placed is in the case of B.M. Chatterjee v. State of West Bengal 1970 AIR(Cal) 290]. That was a case where a learned Single Judge proceeded on the footing that the Directors were owners of the company. We called upon the learned counsel for the appellant to substantiate the proposition that Directors in the absence of anything more would have to be treated owners of the company and he has candidly accepted the position that in the absence of facts and proof of actual position, Directors cannot be treated ipso facto as owners. Thus no support is available from the precedents. We are of the view that the High Court was right in its conclusion that the liability was of the company and in the event of their being an occupier, he was liable to meet the demand4. Counsel has no information as to whether any action has been taken against the company for recovery of the amount as suggested in the impugned judgment of the High Court. | 0[ds]We called upon the learned counsel for the appellant to substantiate the proposition that Directors in the absence of anything more would have to be treated owners of the company and he has candidly accepted the position that in the absence of facts and proof of actual position, Directors cannot be treated ipso facto as owners. Thus no support is available from the precedents. We are of the view that the High Court was right in its conclusion that the liability was of the company and in the event of their being an occupier, he was liable to meet the demand4. Counsel has no information as to whether any action has been taken against the company for recovery of the amount as suggested in the impugned judgment of the High Court. | 0 | 732 | 142 | ### 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:
1. This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana affirming the decision of the Single Judge in a writ petition. The short question that came before the High Court for consideration was whether the Directors of a private limited company had personal liability to meet the demand of contribution arising under the Employees State Insurance Act, 1948. Their liability depended upon the correct interpretation of the term principal employer appearing in Section 2(17) of the Act. The definition reads thus"2.(17) principal employer means - (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such government in this behalf or where no authority is so appointed, the Head of the Department;(iii) in any other establishment, any person responsible for the supervisor and control of the establishment;" * 2. There is no dispute that clause (ii) does not apply. What is relevant to consider is whether the liability of Directors is covered under clause (i) and if it is, clause (iii) being residuary would not apply and in case it is not covered by clause (i), the matter would be regulated by clause (iii). Admittedly the company had a factory and it is not in dispute that the occupier of the factory had been duly named. It in also not in dispute that it had a manager too. In view of the clear terms in the definition, we are of the view that Directors did not come within clause (i) but the occupier being there, clause (i) applied and in that view of the matter, clause (iii) could have no application3. Learned counsel for the appellant relied upon two decisions as precedents. In the case of the Bombay High Court in Suresh Tulsidas Kailachand v. Collector of Bombay [ 1980 (2) LLJ 81 [Ed. : This case has been reversed in Suresh Tulsidas Kailachand v. Collector of Bombay, 1984 Lab IC 1614 (Bom) (DB) : 1984 (1) LLN 312]], the court found liability by relying upon clause (i) of the definition without first ascertaining whether the matter was covered by clause (i). Now on our finding in the instant case that clause (i) applied, we do not have to go to clause (iii) where the liability is of the person who is responsible for the supervision and control of the establishment. The other decision on which reliance has been placed is in the case of B.M. Chatterjee v. State of West Bengal 1970 AIR(Cal) 290]. That was a case where a learned Single Judge proceeded on the footing that the Directors were owners of the company. We called upon the learned counsel for the appellant to substantiate the proposition that Directors in the absence of anything more would have to be treated owners of the company and he has candidly accepted the position that in the absence of facts and proof of actual position, Directors cannot be treated ipso facto as owners. Thus no support is available from the precedents. We are of the view that the High Court was right in its conclusion that the liability was of the company and in the event of their being an occupier, he was liable to meet the demand4. Counsel has no information as to whether any action has been taken against the company for recovery of the amount as suggested in the impugned judgment of the High Court.
### Response:
0
### Explanation:
We called upon the learned counsel for the appellant to substantiate the proposition that Directors in the absence of anything more would have to be treated owners of the company and he has candidly accepted the position that in the absence of facts and proof of actual position, Directors cannot be treated ipso facto as owners. Thus no support is available from the precedents. We are of the view that the High Court was right in its conclusion that the liability was of the company and in the event of their being an occupier, he was liable to meet the demand4. Counsel has no information as to whether any action has been taken against the company for recovery of the amount as suggested in the impugned judgment of the High Court.
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LT. GENERAL MANOMOY GANGULY VSM Vs. UNION OF INDIA | present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended.(vi) It is for the first time that in the Note dated 23 rd January 2018 the question of so-called ‘suitability? is taken up. We have used the expression ‘so-called? for the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise of ?inter se suitability? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone of ‘inter se seniority and suitability?.35. Having regard to overall circumstances of the case and the manner in which this case has been dealt with in the past, we are left with no alternative but to give the directions ourselves. In adopting this course of action, we would also like to reproduce the following discussion from the judgment dated August 01, 2018:"Apart from the aforesaid admitted facts, we also would like to state some of the findings as recorded by the AFT, with which we are in agreement. These are listed below:"(i) There has been some attempt (though we are not suggesting as to whether it was deliberate or bona fide) in denying the respondent his claim for promotion to the rank of Lt. General. Events in detail on this aspect have already been narrated above, which need not be reiterated. Suffice it is to mention that even after the orders of the AFT and affirmation thereafter by the judgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantri took a fair and objective view in the matter and granted him his deserved promotion, which was legitimately due to him.(ii) As on 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer.(iii) The manner in which this Note is written leaves a reasonable impression that the exercise was done to exclude the respondent from appointment to the post of DGMS (Army). In the first instance, though the criteria of assessment ‘in the light of their earlier experience in a particular service? is mentioned in paragraph 3 of the Note, it nowhere reproduces the exact criteria, namely, ‘inter se seniority and suitability?. Thus, while considering the earlier experience in a particular service, it was to be done in the light of inter se seniority-cum-suitability is not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in this Note.(iv) In paragraph 7 of the Note dated 23 rd January 2018, case of the respondent is discussed. Qua him it is mentioned that since he would be newly promoted from the rank of Major General, he does not have ‘previous exposure to the working and environs of the IHQ of the MoD?. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). This, according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers who had earlier worked in the environs of the IHQ of the MoD. This fact also could not be refuted by the appellants. Therefore, we find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability."36. | 1[ds]We may record at the outset that the exercise undertaken by Raksha Mantri does not suffer from any element of unfairness and that Raksha Mantri has endeavored to arrive at the decision, by interpreting the order of this Court in a particular way. We shall advert to the question as to whether such an understanding of the order is correct or not. However, the record shows, at least, that the exercise undertaken in arriving at the said decision dated August 10, 2018 is bona fide, at least insofar as the Raksha Mantri is concerned. At the same time, we are constrained to remark that the decision making process suffers from some significant errors and it cannot be said to be unblemished.At the outset, we may observe that emphasis of the learned Attorney General about the importance of DGMS (Army) post is absolutely correct. The incumbent to this post has the responsibility to discharge his function with high degree of intellect and experience as it carries onerous responsibility, with wide executive powers, which would include, but is not limited to, specialised knowledge in any field of medicine. Therefore, the person to be appointed to this post should be one in which the State has highest confidence and the appointment cannot go by seniority alone. At the same time, it is also to be borne in mind that the Government has itself taken a decision on July 10, 1992 which mentions the eligibility conditions for this post and also lays down the criteria which has to be adopted while deciding the person who would be eminently suited to hold such a post. To repeat, the criteria isinter se seniority. While adjudging this inter se seniority and suitability, assessment is in the light of their earlier experience and serving in particular service. Therefore, in this scenario the scrutiny of this Court is limited to the aspect as to whether the aforesaid criteria is scrupulously followed.We are also one with Mr. Venugopal about the scope of judicial review in such mattes. The court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonable and supported by evidence. The court does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either. The court does not supplant "the feel of the expert" by its own review. Undoubtedly, this Court is not sitting as an appellate authority over the decision taken in making such appointments and is not supposed to substitute its view for that of the respondent authorities. However, scope of judicial review certainly extends to examining the decision making process and to see as to whether appropriate process, legally permissible, has been undertaken while taking the decision. While undertaking this examination, the court can deliberate and ensure that all relevant factors are taken into consideration and, correspondingly, no irrelevant considerations have crept in in the decision making process. These are, among others, the accepted norms of judicial review. After all, discretionary powers conferred on the administration cannot be unguided. No doubt, in such matters, the discretion exercised by the authorities is to be generally accepted. This does not, however, mean that there is no control over discretion of the administration. All powers have legal limits. There is distinction between decision making process and the merit of the decision. Whereas in the former, the court applies the standard of judicial review, in the latter, it enters into the merits of the matter.First fundamental error has occurred in lateral shifting of Air Marshal Rajvir Singh and considering his candidature along with others. It is contrary to the policy Guidelines dated July 10, 1992. The Guidelines permit such a lateral shiftingonly in exceptionalNo such exceptional circumstances are sated anywhere on the basis of which this move of lateral shifting is justified.It is pertinent to mention here that DGAFMS/COAS in their earlier notings dated January 23, 2018 had not included Air Marshal Rajvir Singh in the panel for the post of DGMS (Army) on the ground that he had already assumed the post of DGMS(Air) at that time. Again, at that time only the petitioner and Lieutenant General Sanjiv Chopra were considered and Lieutenant General Chopra was recommended for the post. This recommendation had been set aside by the AFT and that decision was approved by this Court. In such circumstances, lateral shifting of Air Marshal Rajvir Singh is beyond comprehension, more so, when no exceptional circumstances, which is the requirement, are pointed out. These are neither stated while taking the decision nor in the counter affidavit filed by the Union of India.It has to be highlighted that this Court, no doubt, explained the meaning ofinter se suitability by examining the same on the basis of caliber, competence, attributes, skills and experience of the officers. However, these attributes are to be seen in the context ofsuitability of the eligibleOnce we discard lateral shifting, only the petitioner and Lieutenant General Sanjiv Chopra remain in the fray. Now, we advert tointer se suitabilityas per the decision dated August 01, 2018 of this Court. The criteria isinter se suitabilityer seThus, suitability of the persons was to be adjudged with the adoption of the said criteria. It is for this reason that in the judgment datedit was also recorded:of course, while doing this exercise seniority of an officer is also to be given due weightage, meaning thereby if senior most person is competent to hold the post, he is to be givenIt seems that the COAS got an impression (may be bona fide, but definitely erroneous impression) from the judgment dated August 01, 2018, that "comparative merit" of the officers is to be adjudged and for that purpose better method would be to go through the Overall Average Performance (OAP). We fail to understand as to on what basis this methodology was thought of, when concededly ACR gradings have never been used as a criteria for posting of a Lieutenant General rank officer earlier. Guidelines dated July 10, 1992 are in place for last more than 26 years. If it has not happened earlier and there was no such mandate of this Court also, as the Court never meant that performance of an officer from the beginning of his career is to be adjudged, such an exercise was unwarranted. We state at the cost of repetition that the parameters of caliber, competence, attributes, skill and experience are to be looked into, but with the objective to find out thesuitability of aGuidelines dated July 10, 1992 do not stipulate the criteria on and it is not treated aspost. It uses the expressionis also an important criteria mentioned in the said policy. It is for this reason, this Court had categorically stated that if the senior most person is competent to hold the post he is to be given preference. Thus, we also find that the mechanism of OAP adopted is foreign to the Guidelines dated July 10, 1992. Having regard to this position contained in the policy decision dated July 10, 1992, the judgments in the case of Lt. Gen. Rajendra Singh Kadyan and Indira Jaising, which have been relied upon by the learned Attorney General, would have no application. No doubt, judgment in the case of Lt. Gen. Rajendra Singh Kadyan throws light on the meaning which is to be given to the expressionas the Court has said that a person who is to be selected for the post should befit to beHowever, as is seen, nowhere the respondents have undertaken the exercise to this effect, namely, fitness or suitability of the petitioner to occupy the post in question. On the earlier occasion, when he was considered along with Lieutenant General Sanjiv Chopra, the latter was recommended only on the basis that the petitioner would be newly promoted from the rank of Major General, he does not haveprevious exposure to the working and environs of the IHQ of theIt was held that it was an extraneous reason and did not amount to fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. This time, again, nowhere his suitability to man the post of DGMS (Army) is adjudged. On the contrary, norm of Overall Assessment Purpose (OAP) is brought in and applied, which is again foreign to the guidelines dated July 10, 1992.We, thus, are of the opinion that the process undertaken by the respondents in taking decision to appoint Air Marshal Rajvir Singh as DGMS (Army) does not stand judicial scrutiny. We are constrained to set aside the appointment of respondent no. 4 as DGMS (Army).With this, we come to another crucial part, namely, in this whole background and scenario when we find that respondent No.4 could not have been literally shifted and appointed as DGMS (Army) in the absence of any exceptional circumstances, what kind of directions can be issued. Once when lateral shifting is held to be impermissible, two officers remain in the fray, namely, the petitioner and Lieutenant General Sanjiv Chopra. Having regard to the fate of Lieutenant General Sanjiv Chopra in the first round of litigation, we are left with the petitioner. As already pointed out above, it is not the case of the respondents that the petitioner is not suitable for the post of DGMS (Army). After all, he has not been rejected on this ground. It is also an admitted fact that he is the senior most person. At this juncture, we would like to reiterate the admitted facts which were taken note of in the judgment dated August 01, 2018. "47. Some admitted facts which are pertinent for the outcome of the present appeal need to be highlighted at this juncture. These are:(i) The respondent is the senior most Lt. General.(ii) He fulfills the eligibility criteria for appointment to the post of DGMS (Army).(iii) DGMS (Army) is treated as better post than other DGs, i.e., DGMS(Navy) and DGMS(AF).(iv) The past practice has been to fill up the post of DGMS (Army) from a senior most officer. Before the AFT, the appellants failed to give any example where seniority was ignored. In the past, i.e. ever since issuance of Circular dated 10 th July 1992, the practice has been to appoint the senior most Lt. General from Army. Before the AFT, the appellants could not cite a single deviation to the aforesaid practice. In the appeal, example of one Air Marshal H.K. Maini is given. However, it is adequately answered by the respondent by pointing out that that happened because Air Marshal Maini himself chose not to be posted as DGMS (Army) because of his health reasons, which the appellants could not controvert.(v) Even, in the present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended.(vi) It is for the first time that in the Note dated 23 rd January 2018 the question of‘suitability? is taken up. We have used the expressionfor the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise ofy? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone ofe seniority andng regard to overall circumstances of the case and the manner in which this case has been dealt with in the past, we are left with no alternative but to give the directions ourselves. | 1 | 10,370 | 2,277 | ### 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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present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended.(vi) It is for the first time that in the Note dated 23 rd January 2018 the question of so-called ‘suitability? is taken up. We have used the expression ‘so-called? for the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise of ?inter se suitability? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone of ‘inter se seniority and suitability?.35. Having regard to overall circumstances of the case and the manner in which this case has been dealt with in the past, we are left with no alternative but to give the directions ourselves. In adopting this course of action, we would also like to reproduce the following discussion from the judgment dated August 01, 2018:"Apart from the aforesaid admitted facts, we also would like to state some of the findings as recorded by the AFT, with which we are in agreement. These are listed below:"(i) There has been some attempt (though we are not suggesting as to whether it was deliberate or bona fide) in denying the respondent his claim for promotion to the rank of Lt. General. Events in detail on this aspect have already been narrated above, which need not be reiterated. Suffice it is to mention that even after the orders of the AFT and affirmation thereafter by the judgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantri took a fair and objective view in the matter and granted him his deserved promotion, which was legitimately due to him.(ii) As on 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer.(iii) The manner in which this Note is written leaves a reasonable impression that the exercise was done to exclude the respondent from appointment to the post of DGMS (Army). In the first instance, though the criteria of assessment ‘in the light of their earlier experience in a particular service? is mentioned in paragraph 3 of the Note, it nowhere reproduces the exact criteria, namely, ‘inter se seniority and suitability?. Thus, while considering the earlier experience in a particular service, it was to be done in the light of inter se seniority-cum-suitability is not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in this Note.(iv) In paragraph 7 of the Note dated 23 rd January 2018, case of the respondent is discussed. Qua him it is mentioned that since he would be newly promoted from the rank of Major General, he does not have ‘previous exposure to the working and environs of the IHQ of the MoD?. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). This, according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers who had earlier worked in the environs of the IHQ of the MoD. This fact also could not be refuted by the appellants. Therefore, we find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability."36.
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never been used as a criteria for posting of a Lieutenant General rank officer earlier. Guidelines dated July 10, 1992 are in place for last more than 26 years. If it has not happened earlier and there was no such mandate of this Court also, as the Court never meant that performance of an officer from the beginning of his career is to be adjudged, such an exercise was unwarranted. We state at the cost of repetition that the parameters of caliber, competence, attributes, skill and experience are to be looked into, but with the objective to find out thesuitability of aGuidelines dated July 10, 1992 do not stipulate the criteria on and it is not treated aspost. It uses the expressionis also an important criteria mentioned in the said policy. It is for this reason, this Court had categorically stated that if the senior most person is competent to hold the post he is to be given preference. Thus, we also find that the mechanism of OAP adopted is foreign to the Guidelines dated July 10, 1992. Having regard to this position contained in the policy decision dated July 10, 1992, the judgments in the case of Lt. Gen. Rajendra Singh Kadyan and Indira Jaising, which have been relied upon by the learned Attorney General, would have no application. No doubt, judgment in the case of Lt. Gen. Rajendra Singh Kadyan throws light on the meaning which is to be given to the expressionas the Court has said that a person who is to be selected for the post should befit to beHowever, as is seen, nowhere the respondents have undertaken the exercise to this effect, namely, fitness or suitability of the petitioner to occupy the post in question. On the earlier occasion, when he was considered along with Lieutenant General Sanjiv Chopra, the latter was recommended only on the basis that the petitioner would be newly promoted from the rank of Major General, he does not haveprevious exposure to the working and environs of the IHQ of theIt was held that it was an extraneous reason and did not amount to fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. This time, again, nowhere his suitability to man the post of DGMS (Army) is adjudged. On the contrary, norm of Overall Assessment Purpose (OAP) is brought in and applied, which is again foreign to the guidelines dated July 10, 1992.We, thus, are of the opinion that the process undertaken by the respondents in taking decision to appoint Air Marshal Rajvir Singh as DGMS (Army) does not stand judicial scrutiny. We are constrained to set aside the appointment of respondent no. 4 as DGMS (Army).With this, we come to another crucial part, namely, in this whole background and scenario when we find that respondent No.4 could not have been literally shifted and appointed as DGMS (Army) in the absence of any exceptional circumstances, what kind of directions can be issued. Once when lateral shifting is held to be impermissible, two officers remain in the fray, namely, the petitioner and Lieutenant General Sanjiv Chopra. Having regard to the fate of Lieutenant General Sanjiv Chopra in the first round of litigation, we are left with the petitioner. As already pointed out above, it is not the case of the respondents that the petitioner is not suitable for the post of DGMS (Army). After all, he has not been rejected on this ground. It is also an admitted fact that he is the senior most person. At this juncture, we would like to reiterate the admitted facts which were taken note of in the judgment dated August 01, 2018. "47. Some admitted facts which are pertinent for the outcome of the present appeal need to be highlighted at this juncture. These are:(i) The respondent is the senior most Lt. General.(ii) He fulfills the eligibility criteria for appointment to the post of DGMS (Army).(iii) DGMS (Army) is treated as better post than other DGs, i.e., DGMS(Navy) and DGMS(AF).(iv) The past practice has been to fill up the post of DGMS (Army) from a senior most officer. Before the AFT, the appellants failed to give any example where seniority was ignored. In the past, i.e. ever since issuance of Circular dated 10 th July 1992, the practice has been to appoint the senior most Lt. General from Army. Before the AFT, the appellants could not cite a single deviation to the aforesaid practice. In the appeal, example of one Air Marshal H.K. Maini is given. However, it is adequately answered by the respondent by pointing out that that happened because Air Marshal Maini himself chose not to be posted as DGMS (Army) because of his health reasons, which the appellants could not controvert.(v) Even, in the present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended.(vi) It is for the first time that in the Note dated 23 rd January 2018 the question of‘suitability? is taken up. We have used the expressionfor the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise ofy? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone ofe seniority andng regard to overall circumstances of the case and the manner in which this case has been dealt with in the past, we are left with no alternative but to give the directions ourselves.
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M/s. Sainik Motors, Jodhpur & Others Vs. State of Rajasthan | Jethaji Peraji Firm v. Krishnayya, ILR 52 Mad 648 at p. 656 : (AIR 1930 Mad 278 at p. 280), and by the Judicial Committee in Burjore and Bhavani Pershad v. Mt. Bhagana, 11 Ind App 7 (PC).13. Now, Rules 8 and 8-A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8-A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of the Act.14. It is contended that the power to fix lump sums in lieu of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional. It is also urged that the levy of the lump sum leads to the result that even if passengers or goods are not transported, the tax is still payable. These argument, in our opinion, cannot be accepted. The learned Advocate-General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/- per day and the maximum. Rs. 1.50 np. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. The fares and freights are fixed by competent authority under the Motor Vehicles Act, and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figures is based on average, and cannot be impeached by reference to a possibility that on some days no business might be done.15. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using road has been pointed out, and all operators are equally affected by the Act. Some manner of support for the argument was sought from S. 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals or charities.16. It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalated, matalled, gravel and kankar roads than that for other roads discriminates between operators. This arguments overlooks the very object and purpose of a tax. As is well-known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus indispensable to any good government, and the imposition of the tax is justified on the assumption of the return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be made out.17. The last contention is that the proviso to sub-s. (3) of S. 3 is extra-territorial in nature, because it makes the tax payable on fares and freights attributable to the territory of another State when the route passes through such territory, even though the journey starts and ends in Rajasthan. We were informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention. | 0[ds]We do not agree that the Act, in its pith and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax "in respect of all passengers carried and goods transported by motor vehicles", and though the measure of the tax is furnished by the amount of fare and freight charged, it does not cease to be a tax on passengers and goods. The Explanation to S. 3(1) lays down that even if passengers are carried or goods transported without the charge of fare or freight, the tax has to be paid as if fare or freight has been charged. This clearly shows that the incident of the tax is upon passengers and goods, though the amount of the tax is measured by the fares orour opinion, the charging section does not go outside Entry No. 56.The tax is still on passengers and goods, though what it is to be is determined by the amount of fare and freight. It is clear that if the tax were laid on passengers irrespective of he distance traveled by them, it would lead to anomalies if the amount charged be the same in every case. This is additionally clear in the case of goods where the weight, bulk or nature of the goods may be different and a scale of payments must inevitably be devised. Though the tax is laid on passengers and goods, the amount varies in the case of passengers according to the distance travelled, and in the case of goods because the freight must necessarily differ on account of weight, bulk and nature of the goods, transported. The tax, however, is still a tax on passengers and goods, and the argument that it is not so, is not sound.10. We are also of opinion that no inter-State trade, commerce or intercourse is affected. The tax is for purposes of State, and falls upon passengers and goods carried by motor vehicles within the State.No doubt, it falls upon passengers and goods proceeding to or form an extra-State point but it is limited only to the fare and freight proportionate to the route within the State. For this purpose, there is an elaborate scheme in R. 8-A to avoid a charge of tax on that portion of the route which lies outside the State. There is thus no tax on fares and freights attributable to routes outside the State except in one instance which is contemplated by the proviso to sub-s. (3) of S. 3 and to which reference will be made separately. In our opinion the levy of tax cannot be said to offend Arts. 301 and 304 of theis no doubt that ex facie the two provisos to S. 4 employ language which is permissive, while the two Rules and the notification employ language which is imperative. The two provisos to S. 4 are enabling, and thereby authorise the State Government to accept a lump sum payment in lieu of the tax actually chargeable. The word "accept" shows that the election to pay a lump sum is with the taxpayer, who may choose one method of payment or the other. The inclusion of such a provision is designed to promote easy observance of the Act and also its easy enforcement. The charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities, who have to maintain constant checks and inspections. The lump sum payment is a convenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights. The operators pay the lump sum if they so choose, to avoid having to maintain accounts and to file returns, and the Government accepts it to avoid having to inspect accounts and to keep a check. The rates which are prescribed for a lump sum payment per year are for those who wish to avail of them.Now, Rules 8 and 8-A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8-A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of theargument, in our opinion, cannot be accepted. The learned Advocate-General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/- per day and the maximum. Rs. 1.50 np. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. The fares and freights are fixed by competent authority under the Motor Vehicles Act, and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figures is based on average, and cannot be impeached by reference to a possibility that on some days no business might be done.15. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using road has been pointed out, and all operators are equally affected by the Act. Some manner of support for the argument was sought from S. 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals orarguments overlooks the very object and purpose of a tax. As is well-known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus indispensable to any good government, and the imposition of the tax is justified on the assumption of the return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be madewere informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention. | 0 | 4,770 | 1,633 | ### 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:
Jethaji Peraji Firm v. Krishnayya, ILR 52 Mad 648 at p. 656 : (AIR 1930 Mad 278 at p. 280), and by the Judicial Committee in Burjore and Bhavani Pershad v. Mt. Bhagana, 11 Ind App 7 (PC).13. Now, Rules 8 and 8-A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8-A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of the Act.14. It is contended that the power to fix lump sums in lieu of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional. It is also urged that the levy of the lump sum leads to the result that even if passengers or goods are not transported, the tax is still payable. These argument, in our opinion, cannot be accepted. The learned Advocate-General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/- per day and the maximum. Rs. 1.50 np. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. The fares and freights are fixed by competent authority under the Motor Vehicles Act, and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figures is based on average, and cannot be impeached by reference to a possibility that on some days no business might be done.15. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using road has been pointed out, and all operators are equally affected by the Act. Some manner of support for the argument was sought from S. 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals or charities.16. It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalated, matalled, gravel and kankar roads than that for other roads discriminates between operators. This arguments overlooks the very object and purpose of a tax. As is well-known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus indispensable to any good government, and the imposition of the tax is justified on the assumption of the return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be made out.17. The last contention is that the proviso to sub-s. (3) of S. 3 is extra-territorial in nature, because it makes the tax payable on fares and freights attributable to the territory of another State when the route passes through such territory, even though the journey starts and ends in Rajasthan. We were informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention.
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### Explanation:
accept a lump sum payment in lieu of the tax actually chargeable. The word "accept" shows that the election to pay a lump sum is with the taxpayer, who may choose one method of payment or the other. The inclusion of such a provision is designed to promote easy observance of the Act and also its easy enforcement. The charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities, who have to maintain constant checks and inspections. The lump sum payment is a convenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights. The operators pay the lump sum if they so choose, to avoid having to maintain accounts and to file returns, and the Government accepts it to avoid having to inspect accounts and to keep a check. The rates which are prescribed for a lump sum payment per year are for those who wish to avail of them.Now, Rules 8 and 8-A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8-A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of theargument, in our opinion, cannot be accepted. The learned Advocate-General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/- per day and the maximum. Rs. 1.50 np. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. The fares and freights are fixed by competent authority under the Motor Vehicles Act, and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figures is based on average, and cannot be impeached by reference to a possibility that on some days no business might be done.15. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using road has been pointed out, and all operators are equally affected by the Act. Some manner of support for the argument was sought from S. 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals orarguments overlooks the very object and purpose of a tax. As is well-known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus indispensable to any good government, and the imposition of the tax is justified on the assumption of the return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be madewere informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention.
|
The New India Assurance Co. Ltd Vs. M/s. Protection Manufacturers Pvt. Ltd | the controversy between the parties has made us dwell on the facts of the case at some length. Despite the extensive submissions made on behalf of the parties, the issues to be resolved in this Appeal are confined to two questions, namely,(i) What was the cause of fire which broke out in the factory premises of the assured at Bhatkuri at about 8.45 a.m. on 29th March, 2000?(ii) What was the extent of loss and damage suffered by the assured on account of such fire? 31. As far as the answer to the first question is concerned, the report of the Joint Surveyors, M/s. Asthana & Joshi, dated 28th August, 2000, indicates that the exact cause of the fire was not known, though it could be due to a short circuit. Interestingly, while referring in its report dated 28th May, 2001, to the reply given by the Fire Officer, Cuttack, to the Khurda Branch Manager of the Insurance Company on 5th May, 2001, stating that the cause of fire was a "short circuit" in the raw material section of the factory premises, M/s. J. Basheer & Associates ultimately observed that the fire could reasonably be attributed to an act of "Arson" by vested interests, for some pecuniary benefit, without any factual basis for the same. Apart from the aforesaid observation made at the end of the report, no foundation has been laid down in the report for such an observation which literally appears out of the blues. 32. Even if the views expressed by the Joint Surveyors, M/s. Asthana and Joshi, on the reports submitted by M/s. J. Basheer & Associates are discounted, although they were appointed by the Insurance Company itself, one cannot ignore the views obtained by the Insurance Company from former Chief Justice, Y.V. Chandrachud, although, an attempt has been made on behalf of the Insurance Company to exclude the said views from consideration or at least to water down the same by taking refuge in Section 45 of the Evidence Act. Such a stand has no legs to stand upon, since the opinion given by Justice Chandrachud was based on an analysis of the materials placed before him by the Insurance Company, including the reports submitted by the Joint Surveyors, M/s. Asthana and Joshi and M/s. J. Basheer & Associates. Section 45 of the Evidence Act empowers the Court, in order to form an opinion upon a point of foreign law or of science or of art, or as to identity of handwriting or finger impressions, to rely upon the opinions of persons specially skilled in such matters. The case in hand is quite different, as the views expressed by Justice Chandrachud were not meant to be an opinion within the meaning of Section 45 of the Evidence Act, but an analysis of the reports and the materials provided to His Lordship by the Insurance Company. In fact, the attempt made on behalf of the Appellant Insurance Company to exclude the views expressed by Justice Chandrachud with regard to the cause of fire from the area of consideration does not commend itself to us as the same is a completely independent and unbiased assessment of the events relating to the cause of fire on the basis of the materials made available to His Lordship.33. Without any material to support the theory of arson projected by M/s. J. Basheer & Associates and sufficient material to hold otherwise, it would be entirely unjust and inequitable to accept such a theory without any evidence whatsoever in support thereof. Reference can be made in this context to the submission made by the counsel for the Insurance Company before the National Commission and quoted in para 17 above. Accordingly, we endorse the views expressed by the National Commission that the cause of fire was accidental and that the attempt made by M/s. J. Basheer & Associates to show that the fire had been caused by an act of arson, was motivated and intended to benefit the Appellant Insurance Company. The decisions cited by the parties were rendered in their own particular fact situations in accordance with law which is not disputed. The fact situations are, however, distinguishable.34. This brings us to the second question regarding the quantum of loss suffered by the Respondent Company on account of the fire. As has been commented upon by the Joint Surveyors and Chief Justice Chandrachud and subsequently by the National Commission, the almost identical amounts, barring a few rupees, arrived at by the Insurance Company and M/s. J. Basheer & Associates speak volumes of the exercise carried out by the latter on a wholly cursory investigation which has quite aptly been described as "tailor-made". The amount of loss suffered by the Respondent Company on account of the fire has been calculated by the Joint Surveyors on the basis of the amounts mentioned by the Respondent Company and the computer data available in support thereof and also upon cross-checking with the accounts of suppliers and vendors of raw materials to the Respondent Company. We see no reason to differ with the views expressed by the National Commission in this regard. We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well. | 0[ds]32. Even if the views expressed by the Joint Surveyors, M/s. Asthana and Joshi, on the reports submitted by M/s. J. Basheer & Associates are discounted, although they were appointed by the Insurance Company itself, one cannot ignore the views obtained by the Insurance Company from former Chief Justice, Y.V. Chandrachud, although, an attempt has been made on behalf of the Insurance Company to exclude the said views from consideration or at least to water down the same by taking refuge in Section 45 of the Evidence Act. Such a stand has no legs to stand upon, since the opinion given by Justice Chandrachud was based on an analysis of the materials placed before him by the Insurance Company, including the reports submitted by the Joint Surveyors, M/s. Asthana and Joshi and M/s. J. Basheer & Associates. Section 45 of the Evidence Act empowers the Court, in order to form an opinion upon a point of foreign law or of science or of art, or as to identity of handwriting or finger impressions, to rely upon the opinions of persons specially skilled in such matters. The case in hand is quite different, as the views expressed by Justice Chandrachud were not meant to be an opinion within the meaning of Section 45 of the Evidence Act, but an analysis of the reports and the materials provided to His Lordship by the Insurance Company. In fact, the attempt made on behalf of the Appellant Insurance Company to exclude the views expressed by Justice Chandrachud with regard to the cause of fire from the area of consideration does not commend itself to us as the same is a completely independent and unbiased assessment of the events relating to the cause of fire on the basis of the materials made available to His Lordship.33. Without any material to support the theory of arson projected by M/s. J. Basheer & Associates and sufficient material to hold otherwise, it would be entirely unjust and inequitable to accept such a theory without any evidence whatsoever in support thereof. Reference can be made in this context to the submission made by the counsel for the Insurance Company before the National Commission and quoted in para 17 above. Accordingly, we endorse the views expressed by the National Commission that the cause of fire was accidental and that the attempt made by M/s. J. Basheer & Associates to show that the fire had been caused by an act of arson, was motivated and intended to benefit the Appellant Insurance Company. The decisions cited by the parties were rendered in their own particular fact situations in accordance with law which is not disputed. The fact situations are, however, distinguishable.34. This brings us to the second question regarding the quantum of loss suffered by the Respondent Company on account of the fire. As has been commented upon by the Joint Surveyors and Chief Justice Chandrachud and subsequently by the National Commission, the almost identical amounts, barring a few rupees, arrived at by the Insurance Company and M/s. J. Basheer & Associates speak volumes of the exercise carried out by the latter on a wholly cursory investigation which has quite aptly been described as "tailor-made". The amount of loss suffered by the Respondent Company on account of the fire has been calculated by the Joint Surveyors on the basis of the amounts mentioned by the Respondent Company and the computer data available in support thereof and also upon cross-checking with the accounts of suppliers and vendors of raw materials to the Respondent Company. We see no reason to differ with the views expressed by the National Commission in this regard. We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well.As far as the answer to the first question is concerned, the report of the Joint Surveyors, M/s. Asthana & Joshi, dated 28th August, 2000, indicates that the exact cause of the fire was not known, though it could be due to a short circuit. Interestingly, while referring in its report dated 28th May, 2001, to the reply given by the Fire Officer, Cuttack, to the Khurda Branch Manager of the Insurance Company on 5th May, 2001, stating that the cause of fire was a "short circuit" in the raw material section of the factory premises, M/s. J. Basheer & Associates ultimately observed that the fire could reasonably be attributed to an act of "Arson" by vested interests, for some pecuniary benefit, without any factual basis for the same. Apart from the aforesaid observation made at the end of the report, no foundation has been laid down in the report for such an observation which literally appears out of the blues.Even if the views expressed by the Joint Surveyors, M/s. Asthana and Joshi, on the reports submitted by M/s. J. Basheer & Associates are discounted, although they were appointed by the Insurance Company itself, one cannot ignore the views obtained by the Insurance Company from former Chief Justice, Y.V. Chandrachud, although, an attempt has been made on behalf of the Insurance Company to exclude the said views from consideration or at least to water down the same by taking refuge in Section 45 of the Evidence Act. Such a stand has no legs to stand upon, since the opinion given by Justice Chandrachud was based on an analysis of the materials placed before him by the Insurance Company, including the reports submitted by the Joint Surveyors, M/s. Asthana and Joshi and M/s. J. Basheer & Associates. Section 45 of the Evidence Act empowers the Court, in order to form an opinion upon a point of foreign law or of science or of art, or as to identity of handwriting or finger impressions, to rely upon the opinions of persons specially skilled in such matters. The case in hand is quite different, as the views expressed by Justice Chandrachud were not meant to be an opinion within the meaning of Section 45 of the Evidence Act, but an analysis of the reports and the materials provided to His Lordship by the Insurance Company. In fact, the attempt made on behalf of the Appellant Insurance Company to exclude the views expressed by Justice Chandrachud with regard to the cause of fire from the area of consideration does not commend itself to us as the same is a completely independent and unbiased assessment of the events relating to the cause of fire on the basis of the materials made available to His Lordship.33. Without any material to support the theory of arson projected by M/s. J. Basheer & Associates and sufficient material to hold otherwise, it would be entirely unjust and inequitable to accept such a theory without any evidence whatsoever in support thereof. Reference can be made in this context to the submission made by the counsel for the Insurance Company before the National Commission and quoted in para 17 above. Accordingly, we endorse the views expressed by the National Commission that the cause of fire was accidental and that the attempt made by M/s. J. Basheer & Associates to show that the fire had been caused by an act of arson, was motivated and intended to benefit the Appellant Insurance Company. The decisions cited by the parties were rendered in their own particular fact situations in accordance with law which is not disputed. The fact situations are, however, distinguishable.34. This brings us to the second question regarding the quantum of loss suffered by the Respondent Company on account of the fire. As has been commented upon by the Joint Surveyors and Chief Justice Chandrachud and subsequently by the National Commission, the almost identical amounts, barring a few rupees, arrived at by the Insurance Company and M/s. J. Basheer & Associates speak volumes of the exercise carried out by the latter on a wholly cursory investigation which has quite aptly been described asThe amount of loss suffered by the Respondent Company on account of the fire has been calculated by the Joint Surveyors on the basis of the amounts mentioned by the Respondent Company and the computer data available in support thereof and also uponwith the accounts of suppliers and vendors of raw materials to the Respondent Company. We see no reason to differ with the views expressed by the National Commission in this regard. We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well. | 0 | 5,411 | 1,802 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the controversy between the parties has made us dwell on the facts of the case at some length. Despite the extensive submissions made on behalf of the parties, the issues to be resolved in this Appeal are confined to two questions, namely,(i) What was the cause of fire which broke out in the factory premises of the assured at Bhatkuri at about 8.45 a.m. on 29th March, 2000?(ii) What was the extent of loss and damage suffered by the assured on account of such fire? 31. As far as the answer to the first question is concerned, the report of the Joint Surveyors, M/s. Asthana & Joshi, dated 28th August, 2000, indicates that the exact cause of the fire was not known, though it could be due to a short circuit. Interestingly, while referring in its report dated 28th May, 2001, to the reply given by the Fire Officer, Cuttack, to the Khurda Branch Manager of the Insurance Company on 5th May, 2001, stating that the cause of fire was a "short circuit" in the raw material section of the factory premises, M/s. J. Basheer & Associates ultimately observed that the fire could reasonably be attributed to an act of "Arson" by vested interests, for some pecuniary benefit, without any factual basis for the same. Apart from the aforesaid observation made at the end of the report, no foundation has been laid down in the report for such an observation which literally appears out of the blues. 32. Even if the views expressed by the Joint Surveyors, M/s. Asthana and Joshi, on the reports submitted by M/s. J. Basheer & Associates are discounted, although they were appointed by the Insurance Company itself, one cannot ignore the views obtained by the Insurance Company from former Chief Justice, Y.V. Chandrachud, although, an attempt has been made on behalf of the Insurance Company to exclude the said views from consideration or at least to water down the same by taking refuge in Section 45 of the Evidence Act. Such a stand has no legs to stand upon, since the opinion given by Justice Chandrachud was based on an analysis of the materials placed before him by the Insurance Company, including the reports submitted by the Joint Surveyors, M/s. Asthana and Joshi and M/s. J. Basheer & Associates. Section 45 of the Evidence Act empowers the Court, in order to form an opinion upon a point of foreign law or of science or of art, or as to identity of handwriting or finger impressions, to rely upon the opinions of persons specially skilled in such matters. The case in hand is quite different, as the views expressed by Justice Chandrachud were not meant to be an opinion within the meaning of Section 45 of the Evidence Act, but an analysis of the reports and the materials provided to His Lordship by the Insurance Company. In fact, the attempt made on behalf of the Appellant Insurance Company to exclude the views expressed by Justice Chandrachud with regard to the cause of fire from the area of consideration does not commend itself to us as the same is a completely independent and unbiased assessment of the events relating to the cause of fire on the basis of the materials made available to His Lordship.33. Without any material to support the theory of arson projected by M/s. J. Basheer & Associates and sufficient material to hold otherwise, it would be entirely unjust and inequitable to accept such a theory without any evidence whatsoever in support thereof. Reference can be made in this context to the submission made by the counsel for the Insurance Company before the National Commission and quoted in para 17 above. Accordingly, we endorse the views expressed by the National Commission that the cause of fire was accidental and that the attempt made by M/s. J. Basheer & Associates to show that the fire had been caused by an act of arson, was motivated and intended to benefit the Appellant Insurance Company. The decisions cited by the parties were rendered in their own particular fact situations in accordance with law which is not disputed. The fact situations are, however, distinguishable.34. This brings us to the second question regarding the quantum of loss suffered by the Respondent Company on account of the fire. As has been commented upon by the Joint Surveyors and Chief Justice Chandrachud and subsequently by the National Commission, the almost identical amounts, barring a few rupees, arrived at by the Insurance Company and M/s. J. Basheer & Associates speak volumes of the exercise carried out by the latter on a wholly cursory investigation which has quite aptly been described as "tailor-made". The amount of loss suffered by the Respondent Company on account of the fire has been calculated by the Joint Surveyors on the basis of the amounts mentioned by the Respondent Company and the computer data available in support thereof and also upon cross-checking with the accounts of suppliers and vendors of raw materials to the Respondent Company. We see no reason to differ with the views expressed by the National Commission in this regard. We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well.
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was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well.As far as the answer to the first question is concerned, the report of the Joint Surveyors, M/s. Asthana & Joshi, dated 28th August, 2000, indicates that the exact cause of the fire was not known, though it could be due to a short circuit. Interestingly, while referring in its report dated 28th May, 2001, to the reply given by the Fire Officer, Cuttack, to the Khurda Branch Manager of the Insurance Company on 5th May, 2001, stating that the cause of fire was a "short circuit" in the raw material section of the factory premises, M/s. J. Basheer & Associates ultimately observed that the fire could reasonably be attributed to an act of "Arson" by vested interests, for some pecuniary benefit, without any factual basis for the same. Apart from the aforesaid observation made at the end of the report, no foundation has been laid down in the report for such an observation which literally appears out of the blues.Even if the views expressed by the Joint Surveyors, M/s. Asthana and Joshi, on the reports submitted by M/s. J. Basheer & Associates are discounted, although they were appointed by the Insurance Company itself, one cannot ignore the views obtained by the Insurance Company from former Chief Justice, Y.V. Chandrachud, although, an attempt has been made on behalf of the Insurance Company to exclude the said views from consideration or at least to water down the same by taking refuge in Section 45 of the Evidence Act. Such a stand has no legs to stand upon, since the opinion given by Justice Chandrachud was based on an analysis of the materials placed before him by the Insurance Company, including the reports submitted by the Joint Surveyors, M/s. Asthana and Joshi and M/s. J. Basheer & Associates. Section 45 of the Evidence Act empowers the Court, in order to form an opinion upon a point of foreign law or of science or of art, or as to identity of handwriting or finger impressions, to rely upon the opinions of persons specially skilled in such matters. The case in hand is quite different, as the views expressed by Justice Chandrachud were not meant to be an opinion within the meaning of Section 45 of the Evidence Act, but an analysis of the reports and the materials provided to His Lordship by the Insurance Company. In fact, the attempt made on behalf of the Appellant Insurance Company to exclude the views expressed by Justice Chandrachud with regard to the cause of fire from the area of consideration does not commend itself to us as the same is a completely independent and unbiased assessment of the events relating to the cause of fire on the basis of the materials made available to His Lordship.33. Without any material to support the theory of arson projected by M/s. J. Basheer & Associates and sufficient material to hold otherwise, it would be entirely unjust and inequitable to accept such a theory without any evidence whatsoever in support thereof. Reference can be made in this context to the submission made by the counsel for the Insurance Company before the National Commission and quoted in para 17 above. Accordingly, we endorse the views expressed by the National Commission that the cause of fire was accidental and that the attempt made by M/s. J. Basheer & Associates to show that the fire had been caused by an act of arson, was motivated and intended to benefit the Appellant Insurance Company. The decisions cited by the parties were rendered in their own particular fact situations in accordance with law which is not disputed. The fact situations are, however, distinguishable.34. This brings us to the second question regarding the quantum of loss suffered by the Respondent Company on account of the fire. As has been commented upon by the Joint Surveyors and Chief Justice Chandrachud and subsequently by the National Commission, the almost identical amounts, barring a few rupees, arrived at by the Insurance Company and M/s. J. Basheer & Associates speak volumes of the exercise carried out by the latter on a wholly cursory investigation which has quite aptly been described asThe amount of loss suffered by the Respondent Company on account of the fire has been calculated by the Joint Surveyors on the basis of the amounts mentioned by the Respondent Company and the computer data available in support thereof and also uponwith the accounts of suppliers and vendors of raw materials to the Respondent Company. We see no reason to differ with the views expressed by the National Commission in this regard. We also accept the discretion exercised by the National Commission regarding the rate of interest awarded from three months after the date of the Award. The submissions made on behalf of the Respondent Company for enhancement of the same is rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or the quantum thereof.35. The submissions of Mr. Piyush Gupta in regard to Section 64 UM of the Insurance Act, 1938, are also of substance, as the Appellant Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer & Associates for the said purpose unilaterally. The reports submitted by M/s. J. Basheer & Associates are liable to be discarded on such ground as well.
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Tinsukhia Electric Supply Co. Ltd Vs. State of Assam and Ors | is confined only to disputes in four areas specifically enumerated in Clauses (a) to (d) of Sub-section (1) of Section 20 of the Act. These lacunae in the Statute, it is contended, render the scheme of the Act for the determination of the Amount unreasonable and the scheme of the Act in relation to the determination of the Gross Amount, the deductions to be made therefrom and the assessment of the amount payable for the acquisition, unworkable. 49. The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle ut res majis valeat quam pereat. It is, no doubt, true that if a Statute is absolutely vague and its language wholly intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicial-review by testing the law for arbitrariness or unreasonableness under Article 14; but what a Court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. [1904] 2 Ch. 352 Farwell J. said: Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty. In Fawcett Properties v. Buckingham Country Council [1960] 3 All ER 503 Lord Denning approving the dictum of Farwell, J. said: But when a Statute has some meaning, even though it is obscure, or several meanings, even though it is little to choose between them, the Courts have to say what meaning the Statute to bear rather than reject it as a nullity. It is, therefore, the Courts duty to make what it can of the Statute, knowing that the Statutes are meant to be operative and not inept and that nothing short of impossibility should allow a Court to declare a Statute unworkable. In Whitney v. Inland Revenue Commissioner [1926] AC 37 Lord Dunedin said: A Statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 50. On consideration of the Statute on hand, it is not possible to subscribe to the view that the impugned law has not envisaged any machinery for the due ascertainment of the sums referred to in Clauses (c), (d) and (e) of Section 9 which require, on such ascertainment and quantification, to be deducted from the gross amount. Section 10 enjoins upon the Government to appoint a person having adequate knowledge and experience in matters reeling to accounts to assess the net amount payable under this Act by the Government to the licensee after making the deductions mentioned in Section 9. Sub-section (2) of Section 10 provides that the Special Officer may call for the assistance of such Officer and staff of the Government or the Board or the undertaking as he may deem fit in assessing the net amount payable. These provisions, contemplate the determination by the Special Officer, who is constituted as a statutory authority under the Act, of the net amount payable. The functions of the Special Officer include an examination of the correctness of all the determinations made by the Government in the matter of the deductions, except where Government is statutorily specially constituted as an appellate authority in respect of certain matters under the Act. The Proviso to Sections 8 and 9 envisages prior notice to be issued to the licensee by the Government to show cause against any deduction proposed to be made under Section 8 or 9, as the case may be, within the period specified in the Provisos. Even after the Government so makes such determination of the amounts which, according to it, are deductible from the gross amount, such determination would not be final. The assessment of the net amount payable to the licensee will have to be made by the Special Officer. It is reasonable to construe that the decision of the Government both under Sections 8 and 9 arrived at, even after giving an opportunity to the licensee of being heard, would not be final, but the final determination will have to be made by the Special-Officer appointed under Section 10 of the Act. Section 10(1) and (2) of the Act must be so construed as to enable the Special-Officer to take into account the determinations respecting the deduction under Section 9 and 10 of the Act made by the Government and take a decision of his own in the matter. The power to assess the net amount by necessary implication takes within its sweep the power to examine the validity of the determination made by the Government in the matter of deductions from the gross amount. This power to determine and assess the net-amount payable by necessary implication cover matters envisaged in Sections 8 and 9. Though only Section 9 is specifically referred to in Sub-section (1) of Section 10, the language of sub-section, (1) and (2) which enable the Special Officer to assess the net amount payable would, by necessary implication, attract the power to decide as to the validity and correctness of the deduction to be made under Section 8 as well. So construed, the provisions of Section 10 would furnish a reasonably adequate machinery for the assessment of the net-amount payable to licensee. 51. So far as Arbitration is concerned, even after the decision of the Special-Officer, there is the further Arbitral forum to decide disputes in respect of the specific areas in which disputes are rendered arbitrable under Section 20. In view of these circumstances, we think the grievance of the petitioners on these points questions are not substantial. The points (h) and (i) are also, accordingly, held and answered against the petitioners. | 0[ds]petitioners also urge, in the petitions, a challenge to the validity of the Twentyfourth and Twentyfifth Amendments to the Constitution. This part of the petition, in view of the subsequent pronouncements of this Court on these amendments, does not survive.25. Re: Contentions (a) and (b):The proposition that the legislative declaration of the nexus between the law and the principles in Article 39 is in-conclusive and justiciable is well settled. Indeed that part of Article 31C which sought to impart a Constitutional sanctity, conclusiveness and non-justifiability to such legislative declarations was struck-down in the Keshavananda case. The sequitur is that whenever any immunity is claimed for a law under Article 31C, the Court has the power to examine whether the provisions of the law are basically and essentially necessary for the effectuation of the principles envisaged in Article 39(b) and (c). The observations of Mathew, J. in Keshvananda case 1973 SCR Supp 1 may be recalled:...Whenever a question is raised that the Parliament or State Legislatures have abused their power and inserted a declaration in a law not for giving effect to the State Policy towards securing the directive principles specified in Article 39-B or 39-C, the Court must necessarily go into that question and decide it......If the Court comes to the conclusion that the declaration was merely a pretence and that the real purpose of the law is the accomplishment of some object other than to give effect to the policy of the State towards securing the directive principles in Article 39(b) and (c) the declaration would not be a bar to the court from striking down any provision therein which violates Article 14, 19 or 31. In other words, if a law passed ostensibly to give effect to the policy of the State is, in truth and substance, one for accomplishing an authorised object, the court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law...Chandrachud, J. observed in the Keshavananda case:Laws passed under Article 31C can, in my opinion, be upheld only, and only if, there us a direct and reasonable nexus between the law and the directive policy of the State expressed in Article 39B oro the same effect are the observations of the learned Chief Justice in Minerva Mills Ltd. v. UOI [1981]1SCR206 :...the Courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle.The only question open to judicial review under the unamended Article 31C was whether there is a direct and reasonable nexus between the impugned law and the provisions of Article 39(b) and (c).In the same case, Bhagwati, J. observed:...The point that I wish to emphasis is that the amended Article 31C does not give protection to a law which has merely some remote or tenuous connection with a directive principle....Even where the dominant object of a law is to give effect to a directive principle it is not every provision of the law which is entitled to claim protection.......it is not every provision of a statute which has been enacted with the dominant object of giving effect to a directive principle, that it entitled to protection, but only those provisions of the statute which are basically and essentially necessary for giving effect to the directive principles are protected under the amended Article 31C ....26. The proposition of Sri Sorabjee, in principle, is, therefore. unexceptionable;Apropos of the contention that, at all events, the provisions pertaining to the amount could have no reasonable or direct nexus to the principles envisaged in Article 39(b), but are merely intended to extinguish the legitimate rights of the petitioner-company to receive the price of the undertaking under the 1910 Act, as the law then stood, pursuant to the option exercised by the Board, it would, perhaps, be necessary to ascertain the composite-elements that make for a law of nationalisation and whether provisions touching the quantification of the amount payable for the acquisition are not an essential and integral part of such law.On the contention urged by Shri Rangarajan as to what could be said to survive for consideration under Article 31(2), (as it then stood), if the law has the protection of Article 31C the question that arises is whether anything at all survives for consideration under Article 31, The contention indeed, runs in the teeth of several pronouncements of this Court which lay down that when Article 31C comes-in. Articles 14, 19 and 31 (the last mentioned article as it then stood) go out. This we will consider under point (c).27. It is not disputed that the electricity generated and distributed by the undertakings of the petitioner-companies constitute material resources of the community for the purpose and within the meaning of Article 39(b).In Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd.this Court, referring to what constitute material resources of the community and whether resources produced by, or at the command of, private, as distinguished from the State agencies, constitute such resources as the resources of the community, noticed the contention urged in that case thus:...The submission of Shri A.K. Sen was that neither a coal mine nor a coke oven plant owned by private parties was a material resources of the community. According to the learned Counsel they would become material resources of the community only after they were acquired by the State and not until then. In order to qualify as material resources of the community the ownership of the resources must vest in the community i.e. theA law providing for acquisition was not a law forg this argument which suggested a limited concept of Material resources of the Community the Court observed:...We are unable to appreciate the submission of Shri Sen. The expression material resources of the community means all things which are capable of producing wealth for the community. There is no warrant for interpreting the expression in so narrow a fashion as suggested by Shri Sen and confine it to public-owned material resources, and exclude private-owned material resources The expression involves no dichotomy....It can, therefore, hardly be gain-said that the electrical energy generated and distributed by the undertakings of the petitioner constitutes material resources of the community.It is true that if such a relationship is merely remote and tenuous the protection under Article 31C may not be available. The idea of distribution of the material resources of the community in Article 39(b) is not necessarily limited to the idea of what is taken over for distribution amongst the intended beneficiaries. That is one of the modes of distribution. Nationalisation is another mode. In State of Tamil Nadu v. L. Abu Kavur Bai [1984]1SCR725 this Court had occasion to refer to this aspect. It was held:In other words, the word distribution does not merely mean that property of one should be taken over and distributed to others like land reforms where the land from the big landlords are taken away and given to landlesst is only one of the modes of distribution but not the onlyy nationalising the transport as also the units the vehicles would be able to go the farthest corner of the State and penetrate as deep as possible....This would undoubtedly be a distribution for the common good of the people and would be clearly covered by Clause (b) of Article 39.On an examination of the scheme of the impugned law the conclusion becomes inescapable that the legislative measure is one of nationalisation of the undertakings and the law is eligible for and entitled to the protection of Article 31C.We are afraid this contention proceeds on an impermissible dichotomy of the components integral to the idea of nationalisation. The economic cost of social and economic reform is, perhaps, amongst the most vexed problems of social and economic change and constitute the core element in Nationalisation. The need for constitutional immunities for such legislative efforts at social and economic change recognise the otherwise unaffordable economic burden of reforms. The observations of Mathew J. in Keshavananda case on the point are worth recalling:If full compensation has to be paid, concentration of wealth in the form of immovable or movable property will be transformed into concentration of wealth in the form of money and how is the objective underlined in Article 39(b) and (c) achieved by the transformation? And will there be-enough money in the coffers of the State to pay full compensation?...I am unable to understand the purpose of substituting the word amount for the word compensation in the sub-Article unless it be to deprive the Court of any yard-stick or norm for determining the adequacy of the amount and the relevancy of the principles fixed by law. I should have thought that this coupled with the express provision precluding the Court from going into the adequacy of the amount fixed or determined should put it beyond any doubt that fixation of the amount or determination of the principle for fixing it is a matter for the Parliament alone and that the Court has no say in the matter. 1972CriLJ1526It is, therefore, not possible to divorce the economic considerations or components from the scheme of nationalisation with which the former are inextricably integrated. The financial cost of a scheme of nationalisation lies at its very heart and can not be isolated. Both the provisions relating to the vestibule of the undertakings in the State and those pertaining to the quantification of the Amount are integral and inseparable parts of the integral scheme of nationalisation and do not admit of being considered as distinct provisions independent of each other.30. The memorandum of the writ petition contains averments as to the efficiency and public-utility of the services rendered by the undertakings and that on the date of the take-over the market value of the Tinsukhia and Dibrugarh undertakings were Rs. 55 lakhs and Rs. 35 lakhs respectively and that the undertakings were discharging their obligations to the consumers efficiently and satisfactorily. The case of the petitioners is that there was no justification at all for the nationalisation as the undertakings were efficient and fully catered to the needs of the consume7rs. It was also averred that it was the Government and the Board the had come in the way of the expansion envisaged by the undertakings by withholding the requisite permission for the installation of additional capacity for generation of electricity. The Respondents have sought elaborately to traverse these grounds and to justify the measure for nationalisation.We are afraid, the debate whether nationalisation is by itself to be considered as fulfilling a public-purpose or whether the nationalisation should be shown to be justified by the actual effectuation of the avowed objectives of such nationalisation-the choice between the pragmatic and the doctrinaire approaches-is concluded and no longer available. In Akadasi Padhan v. State of Orissa and Ors. AIR1963SC1047 this debate on the philosophy of nationalisation is concluded. It was held:...Broadly speaking, this discussion discloses a difference in approach. To the socialist, nationalisation or State ownership is a matter of principle and its justification is the general notion of social welfare. To the rationalist, nationalisation or State ownership is a matter of expediency dominated by considerations of economic efficiency and increased output of production.......The amendment made by the Legislature in Article 19(6) shows that according to the Legislature, a law rel7ating to the creation of State monopoly should be presumed to be in the interests of the generaln other words, the theory underlying the amendment in so far as it relates to the concept of State monopoly, does not appear to be based on the pragmatict on the doctrinaire approach which socialism, in the United States of America after the hey-days of the substantive due process, the Supreme Court in l963 in Ferguson v. Skrupa 372 US 726 said:We refuse to sit as a super legislature to weigh the wisdom of legislation, and we emphatically refuse to go back to the lime when courts used the Due Process Clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.... Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours.(Emphasis Supplied)31. Equally untenable is the contention based on the assumption that immediately upon the exercise of the option to purchase, the proprietary-rights of the Tinsukhia Company in relation to the under-taking stood transformed into, and was crystalised in the form of, a mere actionable-claim or a chose-in-action and that, therefore, what was sought to be acquired by the present legislative-measure was merely a chose-in-action. It was contended that no public purpose is achieved by the acquisition of a chose-in-action. This needs examination of the legal character and incidents of the consequences that flow from the exercise of the option to purchase under the 1910 Act. The contention presupposes that contemporaneous with the service of the notice on the licensee, the proprietary-rights of the licensee in relation to the undertaking, proprio vigore, get transformed into a mere chose-in-action. This consequence does not flow from the provisions of 1910 Act. In Fazilka Electric Supply Company Limited v. The Commissioner of Income-Tax, Delhi [1962] Supp. 3 SCR 496 this Court, referring to the nature of the transaction emerging from the exercise of the option, said:It merely provides for an option of purchase to be exercised on the expiration of certain periods agreed to between the parties, and Section 10 further provides that in an appropriate case Government may even forego the option. This section does not provide for a compulsory purchase or compulsory acquisition without reference to and independently of any agreement by the licencee.(Emphasis Supplied)In Gujarat Electricity Board v. Shantilal [1969]1SCR580 referring to the legal consequences that ensue by a mere exercise of the option, it was held:...that the right to purchase the undertaking accrues only at the expiration of the period of licence but for exercising that right, the authority must make its election within the period prescribed in Section 7(4) and issue a notice as required by that sub-section....(Emphasis Supplied)That the right, title and interest of the licensee in the undertaking does not get transferred to the Board or the State, as the case may be, immediately upon the mere exercise of the option to purchase is further clear from what is implicit in the observations of this Court in Godra Electricity Company Limited and Anr. v. The State of Gujarat and Anr. [ [1975]2SCR42 . The proposition contended for by the Learned Additional Solicitor General in that case was noticed thus:In support of the contention that when once the notice exercising the option to purchase the undertaking has been served, the licensee has no further right to can on the business, the learned Additional Solicitor General placed reliance on the decision of this Court in Kalyan Singh v. State of U.P....This Court held that the exercise of the option would have no such effect on the licensees right to carry on his business until the undertaking was actually taken over and paid-for. It was held:A licensee cannot be told that he has no right to carry on the business unless a valid purchase is made at the expiry of the period......Admittedly, the undertaking belonged to the licencee and if delivery of the undertaking is to be taken by the State Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will not cease to have operation and the licensee will be entitled to carry on the business.The contentions that immediately upon the exercise of the option, ipso-facto, the relationship between the parties get transformed into one as between a Debtor and a Creditor and that the interest of the licensee in the undertaking becomes an actionable-right, or a chose-in-action and that no public-purpose could be said to be served by the acquisition of a chose-in-action are all out of place in this case.32. It is not necessary, therefore, to go into the question whether a chose-in-action can at all be acquired. Certain observations of this Court in Madan Mohan Pathak v. Union of India and Ors. (1978)ILLJ406SC do suggest that chose-in-action could also be acquired. It will also not be necessary to go into the legal concept of a chose-in-action in Indian law and its distinctiveness from the principles in English law.Williams on Personal-property refers to chose-in-action thus:....another important distinction exists among personal things. Such things are said to be in possession or in action; or they are called, in law French, choses in possession or choses in action. Choses in possession are movable goods, of which their owner has actual possession and enjoyment, and which he can deliver over to another upon a gift or sale; tangible things, as cattle, clothes, furniture, or the like ....The term choses in action appears to have been applied to things, to recover or realise which, if wrongfully withheld, an action must have been brought; things, In respect of which a man had no actual possession or enjoyment, but a mere right enforceable by action. The most important personal things recoverable by action only were money due from another, the benefit of a contract and compensation for a wrong; and these have always been the most prominent choses in action, though not the only things to which the term has been applied....Indeed, in English law the difficulties in the precise definition of chose-in-action arise out of the fact that the meaning attributed to the expression has been expanded from time to time by judicial decisions and the principles pertaining to the concept did not develop on any logical or scientific basis.W.S. Holdsworth also refers to this difficulty in apprehending the precise incidents of the concept of a chose-in-action:It is sometimes difficult to ascertain the sense in which the legislature has used the term chose-in-action we have seen that Bankruptcy Act affords one illustration, and, as we can see from the case of Edwards v. Discard the modifications introduced by the Courts have some times occasioned a similar difficulty. Some of these difficulties might be perhaps mitigated by a codifying Act, for which there is plenty of material. But, it is probable that a branch of the law which comes at the meeting place of the law of property and the law of obligation can never be anything but difficult to formulate and apply.(Emphasis Supplied)(See: The History of the treatment of chose-in-action by the common law:- 33 HLR 997.34. It requires, therefore, to be held that the impugned legislation viz., Assam Act X, 1973, was brought forth for securing the principles contained in Article 39(b) of the Constitution and is protected under Article 31C. The amendment made to the provisions of the Indian Electricity Act, 1910, by Assam Act IX of 1973, amending the basis for quantification of the amount payable in the case of a statutory purchase pursuant to the exercise of the option in terms of the licence would apply to and govern cases of statutory-sales and would not assume any immateriality in this case as the Assam Act X of 1973 is itself-as we have held-a valid piece of legislation.35. We find, therefore, no substance in the contentions (a) and (b) urged by the petitioner.36. Re. contention (C):contention would not, in law, be available to the petitioners inasmuch as the law providing for the acquisition has the protection of Article 31C of the Constitution. The arguments of Shri Soli J. Sorabjee in regard to the alleged illusory nature of the amount presupposes and proceeds on the premise that the impugned law does not have the protection of Article 31C. Now that we have held that Article 31C is attracted, the argument in regard to the alleged illusory nature of the amount does not survive at all.We are afraid, these passages are quoted out of context and, if properly understood, were not intended to support the proposition now propounded by Shri Rangarajan. Indeed in the Keshavananda case itself Chandrachud J. referring to the effect of Article 31C observed:...In fact article 31C is a logical extension of the principles underlying article 31(4) and (6) and article 31A.... The true nature and character of article 31C is that it identifies a class of legislation and exempts it from the operation of articles 14, 19 and 31....(1973 supp. SCR 1 at 995)Khanna J. observed in that case:Both articles 31A and 31C deal with right to property. Article 31-A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of article 31C is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. Article 31C is thus essentially an extension of the principle which was accepted in article, J. said:Article 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 of the Constitution from the vice of invalidity on the ground that any such law is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution. ...the effect of invalidity for alleged violations of Articles 14, 19 and 31 would vanish so long as the law was really meant to give effect to the principles of Article 39(b) and (c)....In State of Karnataka v. Ranganath Reddy [1978]1SCR641 this Court had occasion to observe:...For the purpose of deciding the point which falls for consideration in these appeals, it will suffice to say that still the over-whelming View of the majority of judges in Kesavandanda Bharatis case is that the amount payable for the acquired property either fixed by the legislature or determined on the basis of the principles engrafted in the law of acquisition cannot be wholly arbitrary and illusory. When we say so we are not taking into account the effect of Article 31C inserted in the Constitution by the 25th Amendment (leaving out the invalid part as declared by the majority).(Emphasis Supplied)In Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Company Ltd.this Court said:...To accept the submission of Shri Sen that a law founded on discrimination is not entitled to the protection of Article 31C, as such a law can never be said to be to further the Directive Principle affirmed in Article 39(b), would indeed, be, to use a hackneyed phrase, to put the cart before the horse. If the law made to further the Directive Principle is. necessarily non-discriminatory or is based on a reasonable classification, then such law does not need any protection such as that afforded by Article 31C. Such law would be valid on its own strength, with no aid from Article 31C. To make it a condition precedent that a law seeking the haven of Article 31C must be non-discriminatory or based on reasonable classification is to make Article 31C meaningless....We are firmly of the opinion that where Article 31C comes in Article 14 goes out....What applies to Article 14 would equally apply to Article 31 (as it then stood before its deletion by the Constitution Forty second (Amendment) Act, 1978).In State of Tamil Nadu v. L. Abu Kavur Bai [1984]1SCR725 on which Shri Rangarajan relied, Fazal Ali J. categorily said:It is manifest from a bare reading of the newly added Article 31C that any law effectuating the policy of the State in order to secure or comply with the directive principles specified in Clauses (b) and (c) of Article 39 would not be deemed to be void even if it is inconsistent with or violates Articles 14, 19 and 31...In the same case Fazal Ali J. further said:...If, once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said Article expressly excludes not only Articles 14, and 19 but also 31 which, by virtue of the 25th amendment, had replaced the word amount for the word compensation in Article 31(2)....(Emphasis supplied)Sri Rangarajan cannot, therefore, draw any sustenance from Fazal Ali J. for his argument.38. The contention of Shri Rangarajan in our opinion, is wholly unsupportable. Indeed, the purpose of Article 31C is, amongst others, to exclude Article 31, as it then stood. The effect of accepting Sri Rangarajans contention would be to let in Article 31 by the backdoor, frustrating the very object of Article 31C and to unsettle the law laid down in a series of authoritative pronouncements of this Court.The contention really, is not available to the petitioners at all.39. Even if the impugned law did not have the protection of Article 31C, a hypothesis on which contention (c) is based, the adequacy or inadequacy of the amount is not justiciable. The limitations of the courts scrutiny explicit in Article 31(2), are referred to by Mathew J. in the Keshavananda case:...the word amount conveys no idea of any norm. It supplies no yard-stick. It furnishes no measuring rod. The neutral word amount was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word amount for the word compensation in the sub-article unless it be to deprive the Court of any yard stick or norm for determining the adequacy of the amount and the relevancy of the principles fixed byg to what might, yet, be open to judicial scrutiny, under Article 31(b), Shelat and Grower, JJ. observed in the Keshavananda case:But still on the learned Solicitor Generals argument, the right to receive the amount continues to be a fundamental right. That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises both from Article 31(2) and from the nature of the legislative power for, there can be no power which permits in a democratic system an arbitrary use of power.But the norm or the principle of fixing or determining the amount will have to be disclosed to the Court. It will have to be satisfied that the amount has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that the amount is neither illusory nor it has been fixed arbitrarily, nor at such a figure that it means virtual deprivation of the right under Article 31(2). The question of adequacy or inadequacy, however, cannot be gone into.Justice Chandrachud observed:The specific obligation to pay an amount and in the alternative the use of the word principles for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him: I will take your fortune for a farthing. | 0 | 19,656 | 5,105 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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is confined only to disputes in four areas specifically enumerated in Clauses (a) to (d) of Sub-section (1) of Section 20 of the Act. These lacunae in the Statute, it is contended, render the scheme of the Act for the determination of the Amount unreasonable and the scheme of the Act in relation to the determination of the Gross Amount, the deductions to be made therefrom and the assessment of the amount payable for the acquisition, unworkable. 49. The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle ut res majis valeat quam pereat. It is, no doubt, true that if a Statute is absolutely vague and its language wholly intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicial-review by testing the law for arbitrariness or unreasonableness under Article 14; but what a Court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. [1904] 2 Ch. 352 Farwell J. said: Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty. In Fawcett Properties v. Buckingham Country Council [1960] 3 All ER 503 Lord Denning approving the dictum of Farwell, J. said: But when a Statute has some meaning, even though it is obscure, or several meanings, even though it is little to choose between them, the Courts have to say what meaning the Statute to bear rather than reject it as a nullity. It is, therefore, the Courts duty to make what it can of the Statute, knowing that the Statutes are meant to be operative and not inept and that nothing short of impossibility should allow a Court to declare a Statute unworkable. In Whitney v. Inland Revenue Commissioner [1926] AC 37 Lord Dunedin said: A Statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 50. On consideration of the Statute on hand, it is not possible to subscribe to the view that the impugned law has not envisaged any machinery for the due ascertainment of the sums referred to in Clauses (c), (d) and (e) of Section 9 which require, on such ascertainment and quantification, to be deducted from the gross amount. Section 10 enjoins upon the Government to appoint a person having adequate knowledge and experience in matters reeling to accounts to assess the net amount payable under this Act by the Government to the licensee after making the deductions mentioned in Section 9. Sub-section (2) of Section 10 provides that the Special Officer may call for the assistance of such Officer and staff of the Government or the Board or the undertaking as he may deem fit in assessing the net amount payable. These provisions, contemplate the determination by the Special Officer, who is constituted as a statutory authority under the Act, of the net amount payable. The functions of the Special Officer include an examination of the correctness of all the determinations made by the Government in the matter of the deductions, except where Government is statutorily specially constituted as an appellate authority in respect of certain matters under the Act. The Proviso to Sections 8 and 9 envisages prior notice to be issued to the licensee by the Government to show cause against any deduction proposed to be made under Section 8 or 9, as the case may be, within the period specified in the Provisos. Even after the Government so makes such determination of the amounts which, according to it, are deductible from the gross amount, such determination would not be final. The assessment of the net amount payable to the licensee will have to be made by the Special Officer. It is reasonable to construe that the decision of the Government both under Sections 8 and 9 arrived at, even after giving an opportunity to the licensee of being heard, would not be final, but the final determination will have to be made by the Special-Officer appointed under Section 10 of the Act. Section 10(1) and (2) of the Act must be so construed as to enable the Special-Officer to take into account the determinations respecting the deduction under Section 9 and 10 of the Act made by the Government and take a decision of his own in the matter. The power to assess the net amount by necessary implication takes within its sweep the power to examine the validity of the determination made by the Government in the matter of deductions from the gross amount. This power to determine and assess the net-amount payable by necessary implication cover matters envisaged in Sections 8 and 9. Though only Section 9 is specifically referred to in Sub-section (1) of Section 10, the language of sub-section, (1) and (2) which enable the Special Officer to assess the net amount payable would, by necessary implication, attract the power to decide as to the validity and correctness of the deduction to be made under Section 8 as well. So construed, the provisions of Section 10 would furnish a reasonably adequate machinery for the assessment of the net-amount payable to licensee. 51. So far as Arbitration is concerned, even after the decision of the Special-Officer, there is the further Arbitral forum to decide disputes in respect of the specific areas in which disputes are rendered arbitrable under Section 20. In view of these circumstances, we think the grievance of the petitioners on these points questions are not substantial. The points (h) and (i) are also, accordingly, held and answered against the petitioners.
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passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 of the Constitution from the vice of invalidity on the ground that any such law is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution. ...the effect of invalidity for alleged violations of Articles 14, 19 and 31 would vanish so long as the law was really meant to give effect to the principles of Article 39(b) and (c)....In State of Karnataka v. Ranganath Reddy [1978]1SCR641 this Court had occasion to observe:...For the purpose of deciding the point which falls for consideration in these appeals, it will suffice to say that still the over-whelming View of the majority of judges in Kesavandanda Bharatis case is that the amount payable for the acquired property either fixed by the legislature or determined on the basis of the principles engrafted in the law of acquisition cannot be wholly arbitrary and illusory. When we say so we are not taking into account the effect of Article 31C inserted in the Constitution by the 25th Amendment (leaving out the invalid part as declared by the majority).(Emphasis Supplied)In Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Company Ltd.this Court said:...To accept the submission of Shri Sen that a law founded on discrimination is not entitled to the protection of Article 31C, as such a law can never be said to be to further the Directive Principle affirmed in Article 39(b), would indeed, be, to use a hackneyed phrase, to put the cart before the horse. If the law made to further the Directive Principle is. necessarily non-discriminatory or is based on a reasonable classification, then such law does not need any protection such as that afforded by Article 31C. Such law would be valid on its own strength, with no aid from Article 31C. To make it a condition precedent that a law seeking the haven of Article 31C must be non-discriminatory or based on reasonable classification is to make Article 31C meaningless....We are firmly of the opinion that where Article 31C comes in Article 14 goes out....What applies to Article 14 would equally apply to Article 31 (as it then stood before its deletion by the Constitution Forty second (Amendment) Act, 1978).In State of Tamil Nadu v. L. Abu Kavur Bai [1984]1SCR725 on which Shri Rangarajan relied, Fazal Ali J. categorily said:It is manifest from a bare reading of the newly added Article 31C that any law effectuating the policy of the State in order to secure or comply with the directive principles specified in Clauses (b) and (c) of Article 39 would not be deemed to be void even if it is inconsistent with or violates Articles 14, 19 and 31...In the same case Fazal Ali J. further said:...If, once the conditions mentioned in Article 31C are fulfilled by the law, no question of compensation arises because the said Article expressly excludes not only Articles 14, and 19 but also 31 which, by virtue of the 25th amendment, had replaced the word amount for the word compensation in Article 31(2)....(Emphasis supplied)Sri Rangarajan cannot, therefore, draw any sustenance from Fazal Ali J. for his argument.38. The contention of Shri Rangarajan in our opinion, is wholly unsupportable. Indeed, the purpose of Article 31C is, amongst others, to exclude Article 31, as it then stood. The effect of accepting Sri Rangarajans contention would be to let in Article 31 by the backdoor, frustrating the very object of Article 31C and to unsettle the law laid down in a series of authoritative pronouncements of this Court.The contention really, is not available to the petitioners at all.39. Even if the impugned law did not have the protection of Article 31C, a hypothesis on which contention (c) is based, the adequacy or inadequacy of the amount is not justiciable. The limitations of the courts scrutiny explicit in Article 31(2), are referred to by Mathew J. in the Keshavananda case:...the word amount conveys no idea of any norm. It supplies no yard-stick. It furnishes no measuring rod. The neutral word amount was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word amount for the word compensation in the sub-article unless it be to deprive the Court of any yard stick or norm for determining the adequacy of the amount and the relevancy of the principles fixed byg to what might, yet, be open to judicial scrutiny, under Article 31(b), Shelat and Grower, JJ. observed in the Keshavananda case:But still on the learned Solicitor Generals argument, the right to receive the amount continues to be a fundamental right. That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises both from Article 31(2) and from the nature of the legislative power for, there can be no power which permits in a democratic system an arbitrary use of power.But the norm or the principle of fixing or determining the amount will have to be disclosed to the Court. It will have to be satisfied that the amount has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that the amount is neither illusory nor it has been fixed arbitrarily, nor at such a figure that it means virtual deprivation of the right under Article 31(2). The question of adequacy or inadequacy, however, cannot be gone into.Justice Chandrachud observed:The specific obligation to pay an amount and in the alternative the use of the word principles for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him: I will take your fortune for a farthing.
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Assistant Sales Tax Officer Vs. B.C. Kame, Proprietor Kame | transaction for the purpose of ascer taining whether it constitutes a contract of sale or a contract of work or service. If it is of the latter kind it obviously would not attract the tax. From the decisions earlier cited it clearly emerges that such determina tion depends in each case upon its facts and circumstances. Mere passing of property in an article or commodity during the course of the performance of the transaction in question does not render it a transaction of sale. For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materi als may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it. 5. It may in some cases be that even while enter ing into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service. But, then in such cases the trans action would not be one and indivisible, but would fail into two separate agreements, one of work or service and the other of sale." 6. Reliance in the above cited case was placed upon an earlier decision of this Court in the case of State of Madras v. Gannon Dunkerley &Co. (Madras) Ltd.(9 S.T.C. 353.) wherein the Constitution Bench of this Court held that in a building contract the property in materials used, does not pass to the other party to the contract as movable property. It would so pass if that be the agreement between the parties. But if there was no such agreement and the contract was only to construct a building, then the materials used therein would, in the opinion o f the Court, become the property of the other party to the contract only on the theory of accretion.The distinction between a contract of sale and contract for skill and labour has been discussed at page 10 of the 4th Edn. of "Sale of Goods" by P.S. Atiyah. The following passage in that book has a material beating so far as the present case is concerned:"The distinction between contracts of sale and contracts for skill and labour has agitated the courts for many years, and though its importance has been greatly diminished by the repeal of Sect. 4 of the Act, it still cannot be ignored. It was thought for many years that Lee v. Griffin (1861), 1 B.&. 272 laid down that, if a contract would result in the trans fer of the property in goods from one party to another, then it must be a contract of sale. The view was exploded in Robinson v. Graves (1935) 1 K.B. 579 where it w as held that a contract to paint a portrait was a contract for skill and labour and not a contract for the sale o[ goods, despite the fact that it was the object of the contract to transfer the property in the completed portrait to the defendent. Green L.J. stated the law as follows (1935) 1 K.B. at p. 587: If the substance of the contract .... is that skill and labour have to be exercised for the production of the articles and .... it is only ancillary to that that there will pass from the artist to his client or customer some materials in addition to the skill involved in the production of the portrait, that does not make any difference to the result, because the substance of the contract is the skill and experience of the artist in producing the picture." 7. Keeping the above principles in view, we may now turn t o the facts of the present case. When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he can not be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. A good photograph reveals not only the aes- thetic sense and artistic faculty of the photographer, it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not only seeks to mirror and portray a scene from actual life, it also catches and preserves for the future what belong s to and is a part of the fleeting moment. The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is preserved in the photograph un affected. It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we rook back through the mist of time with fondness even though such fondness has a tinge of sadness.We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour. Our attention has been invite d during the course of arguments to some decisions of the High Courts. It is, in our opinion, not necessary to deal with those cases because after giving the matter our consideration was are of the opinion, that the view taken by the High Court in the judgment under appeal substantially represents the correct position in law. 8. | 0[ds]Keeping the above principles in view, we may now turn t o the facts of the present case. When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he can not be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. A good photograph reveals not only the aes- thetic sense and artistic faculty of the photographer, it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not only seeks to mirror and portray a scene from actual life, it also catches and preserves for the future what belong s to and is a part of the fleeting moment. The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is preserved in the photograph un affected. It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we rook back through the mist of time with fondness even though such fondness has a tinge of sadness.We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour. Our attention has been invite d during the course of arguments to some decisions of the High Courts. It is, in our opinion, not necessary to deal with those cases because after giving the matter our consideration was are of the opinion, that the view taken by the High Court in the judgment under appeal substantially represents the correct position in law. | 0 | 2,498 | 370 | ### 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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transaction for the purpose of ascer taining whether it constitutes a contract of sale or a contract of work or service. If it is of the latter kind it obviously would not attract the tax. From the decisions earlier cited it clearly emerges that such determina tion depends in each case upon its facts and circumstances. Mere passing of property in an article or commodity during the course of the performance of the transaction in question does not render it a transaction of sale. For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materi als may pass to the other party. That would not necessarily convert the contract into one of sale of those materials. In every case the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it. 5. It may in some cases be that even while enter ing into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service. But, then in such cases the trans action would not be one and indivisible, but would fail into two separate agreements, one of work or service and the other of sale." 6. Reliance in the above cited case was placed upon an earlier decision of this Court in the case of State of Madras v. Gannon Dunkerley &Co. (Madras) Ltd.(9 S.T.C. 353.) wherein the Constitution Bench of this Court held that in a building contract the property in materials used, does not pass to the other party to the contract as movable property. It would so pass if that be the agreement between the parties. But if there was no such agreement and the contract was only to construct a building, then the materials used therein would, in the opinion o f the Court, become the property of the other party to the contract only on the theory of accretion.The distinction between a contract of sale and contract for skill and labour has been discussed at page 10 of the 4th Edn. of "Sale of Goods" by P.S. Atiyah. The following passage in that book has a material beating so far as the present case is concerned:"The distinction between contracts of sale and contracts for skill and labour has agitated the courts for many years, and though its importance has been greatly diminished by the repeal of Sect. 4 of the Act, it still cannot be ignored. It was thought for many years that Lee v. Griffin (1861), 1 B.&. 272 laid down that, if a contract would result in the trans fer of the property in goods from one party to another, then it must be a contract of sale. The view was exploded in Robinson v. Graves (1935) 1 K.B. 579 where it w as held that a contract to paint a portrait was a contract for skill and labour and not a contract for the sale o[ goods, despite the fact that it was the object of the contract to transfer the property in the completed portrait to the defendent. Green L.J. stated the law as follows (1935) 1 K.B. at p. 587: If the substance of the contract .... is that skill and labour have to be exercised for the production of the articles and .... it is only ancillary to that that there will pass from the artist to his client or customer some materials in addition to the skill involved in the production of the portrait, that does not make any difference to the result, because the substance of the contract is the skill and experience of the artist in producing the picture." 7. Keeping the above principles in view, we may now turn t o the facts of the present case. When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he can not be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. A good photograph reveals not only the aes- thetic sense and artistic faculty of the photographer, it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not only seeks to mirror and portray a scene from actual life, it also catches and preserves for the future what belong s to and is a part of the fleeting moment. The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is preserved in the photograph un affected. It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we rook back through the mist of time with fondness even though such fondness has a tinge of sadness.We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour. Our attention has been invite d during the course of arguments to some decisions of the High Courts. It is, in our opinion, not necessary to deal with those cases because after giving the matter our consideration was are of the opinion, that the view taken by the High Court in the judgment under appeal substantially represents the correct position in law. 8.
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0
### Explanation:
Keeping the above principles in view, we may now turn t o the facts of the present case. When a photographer like the respondent undertakes to take photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he can not be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. A good photograph reveals not only the aes- thetic sense and artistic faculty of the photographer, it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not only seeks to mirror and portray a scene from actual life, it also catches and preserves for the future what belong s to and is a part of the fleeting moment. The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is preserved in the photograph un affected. It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we rook back through the mist of time with fondness even though such fondness has a tinge of sadness.We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour. Our attention has been invite d during the course of arguments to some decisions of the High Courts. It is, in our opinion, not necessary to deal with those cases because after giving the matter our consideration was are of the opinion, that the view taken by the High Court in the judgment under appeal substantially represents the correct position in law.
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UCO BANK Vs. NATIONAL TEXTILE CORPORATION LTD. & ANR | claims being put forth. It is further brought to the notice that the present mechanism brought in through the Office Memorandum dated 22.05.2018 is the Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD) wherein a similar consideration as was being made by PMA will be made. 18. The learned Additional Solicitor General while controverting the contentions insofar as the said Office Memorandum providing the forum would contend that the same would not be applicable in the present facts. In that regard it is contended that the very liability of respondent No.1 herein is in dispute as only the Textile Mill is taken over and, in such circumstance, the said mechanism which provides for adjudication in the case of claims inter se between two Public Sector Enterprises would not be applicable herein. In that light it is contended that the Division Bench of the High Court was justified in quashing the notice issued by the Arbitral Tribunal which was seeking to adjudicate the matter in the jurisdiction which it did not possess. 19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above. 20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis. 21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard. 22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside. | 0[ds]19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside. | 0 | 3,946 | 879 | ### 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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claims being put forth. It is further brought to the notice that the present mechanism brought in through the Office Memorandum dated 22.05.2018 is the Administrative Mechanism for Resolution of CPSEs Disputes (AMRCD) wherein a similar consideration as was being made by PMA will be made. 18. The learned Additional Solicitor General while controverting the contentions insofar as the said Office Memorandum providing the forum would contend that the same would not be applicable in the present facts. In that regard it is contended that the very liability of respondent No.1 herein is in dispute as only the Textile Mill is taken over and, in such circumstance, the said mechanism which provides for adjudication in the case of claims inter se between two Public Sector Enterprises would not be applicable herein. In that light it is contended that the Division Bench of the High Court was justified in quashing the notice issued by the Arbitral Tribunal which was seeking to adjudicate the matter in the jurisdiction which it did not possess. 19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above. 20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis. 21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard. 22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside.
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0
### Explanation:
19. As already noticed, since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the take-over was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum referred to above20. While stating so it cannot also be lost sight that the appellant herein had originally instituted the recovery proceedings against Shree Sitaram Mills Ltd. by filing Suit No.3961/1988 which was thereafter transferred to the Debts Recovery Tribunal I, Mumbai in O.A. No.2526/1999. The said proceeding had concluded by issue of Recovery Certificate dated 05.08.2004 against the other defendants except defendant Nos.3 (a to c) regarding which an appeal in DRTA Appeal No.271/2005 is pending before the Debts Recovery Appellate Tribunal, Mumbai. The said appeal is against the judgment and decree dated 29.03.2005. In the recovery proceedings pursuant to the decree, if in the meanwhile certain change of status relating to the judgment debtor has taken place as in the instant case, namely, the take-over of Shree Sitaram Mills which was a part of Shree Sitaram Mills Ltd. is to be taken note. Upon consideration of evidence adduced by the parties it has to be determined in that light as to whether the Respondent No.1 Corporation has in fact inherited such liability making themselves liable for the decree in existence or on the other hand if such liability has remained and subsisted with Shree Sitaram Mills Ltd. It is a matter to be examined in such recovery proceedings by providing opportunity to the parties to adduce evidence. Further in respect of post take over period a Suit No.4489/96 was filed which was transferred to DRT and registered as O.A.No.1114/2000 which has remained pending as respondent No.2 had proceeded to BIFR. No doubt in that circumstance if the appellant herein had chosen to initiate the proceedings before the PMA, keeping in view that the COD which was subsequently constituted is a mechanism in the nature of pre-litigation mediation, it cannot be said that the step adopted by the appellant is wholly without basis21. However, when it is noticed that the Respondent No.1 has serious objections to the liability and nature of take-over of the Textile Mills is to be examined before recoveries are made, the adjudication of the matter in the recovery proceedings would be the appropriate course. Therefore, to that extent the Division Bench no doubt was justified in setting aside the arbitral proceedings by quashing the notice dated 17.11.2011. However, we notice that the Division Bench while arriving at its conclusion has also referred to the decision of the High Court of Madras in Swadeshi Cotton Mills Company Ltd. vs. The Commissioner of Central Provident Fund and the decision of the High Court of Allahabad in U.P State Sugar Corporation Ltd. vs. Dr. Kailash Behari Sharma to hold that the liability would not transfer on takeover. The said consideration is with regard to the Provident Fund dues towards the Provident Fund contribution. In the instant case, the claim is by the lender Bank towards which a decree had already been granted in respect of one claim and the other claim is pending consideration. The fact as to whether in the matter of take over, the liabilities were also included is one aspect of the matter. Further, the aspect which may also require examination by the Court undertaking the recovery proceedings is as to whether in the process of take-over of Shree Sitaram Mills the secured assets for the loan transaction has been taken over by the Respondent No.1 or was it available with Shree Sitaram Mills Ltd. if it had retained its existence and identity after take-over of the Textile Mills and in that circumstance whether the recovery proceedings could still be resorted to against the Respondent No.1 in respect of the liability of Shree Sitaram Mills Ltd., and would the Union of India be liable as Guarantor. This is an aspect which is to be examined after providing opportunity to the parties, if need be, after tendering evidence in that regard22. Therefore, the question of liability could neither have been decided in the writ proceedings before the High Court nor in this appeal. If this aspect is kept in view, the conclusion reached by the Division Bench in paragraph 25 to hold that the respondent herein is not liable for the dues of Shree Sitaram Mills Ltd. and the proceedings is misconceived for such claim is an erroneous conclusion reached in a proceedings where such conclusion ought not to have been recorded. Hence the decision to that effect is liable to be set aside.
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M/s Jersey Developers (P) Limited & Ors Vs. Canara Bank | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.04.2021 passed by the High Court of Judicature at Madras in Civil Revision Petition No.4427 of 2015 by which the High Court has dismissed the said revision application preferred by the appellants herein in which the appellants challenged the order passed by the learned Trial Court dismissing the petition to set aside the ex--parte decree, the appellants herein – original defendants have preferred the present appeal. 2. The appellant no.1 is the company who availed the loan facility from the respondent – Bank and appellant nos. 2 and 3 are the Directors who are staying along with their family in United States of America (USA) for last 40 years. The respondent - Bank instituted suit being OS No.3749 of 2003 before the learned Trial Court for recovery of the amount. The summons of the suit and the notices were sent to the address at Chennai which remained closed as the appellants herein original defendants are staying in USA. The summons and the notices were returned unclaimed. Therefore, the Court below ordered substituted service by newspaper publication. Thereafter the suit proceeded ex-parte and an ex--parte decree came to be passed vide judgment and decree dated 12.02.2004. The Bank subsequently approached the Debts Recovery Tribunal for issuance of the recovery certificate. The DRT, Chennai issued a notice dated 07.06.2013 in the name of the appellants calling upon them to pay a sum of Rs.47,21,320.53. The said notice was also sent to the address at Chennai which property according to the appellants was already sold in the year 2002. According to the appellants when appellant no.2 visited India in the year 2014, he become aware of the recovery certificate on 29.03.2014 and the ex--parte decree. The appellants hereinoriginal defendants therefore filed the application before the learned Trial Court to set aside the ex--parte judgment and decree dated 12.02.2004. The said application came to be dismissed by the learned Trial Court. The revision application against the order passed by the learned Trial Court dismissing the application to set aside the ex--parte judgment and decree has also been dismissed by the High Court by the impugned judgment and order. 2.1 At the time of hearing of the present appeal it was stated at the Bar that pursuant to the order passed by the High Court, the petitioners have already deposited 50% of the decretal amount. This Court passed an order dated 26.11.2021 that on deposit of the balance 50% of the decretal amount with the Registry of this Court, notice shall be issued. It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court). 3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice. | 1[ds]It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court).3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice. | 1 | 645 | 173 | ### 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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M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.04.2021 passed by the High Court of Judicature at Madras in Civil Revision Petition No.4427 of 2015 by which the High Court has dismissed the said revision application preferred by the appellants herein in which the appellants challenged the order passed by the learned Trial Court dismissing the petition to set aside the ex--parte decree, the appellants herein – original defendants have preferred the present appeal. 2. The appellant no.1 is the company who availed the loan facility from the respondent – Bank and appellant nos. 2 and 3 are the Directors who are staying along with their family in United States of America (USA) for last 40 years. The respondent - Bank instituted suit being OS No.3749 of 2003 before the learned Trial Court for recovery of the amount. The summons of the suit and the notices were sent to the address at Chennai which remained closed as the appellants herein original defendants are staying in USA. The summons and the notices were returned unclaimed. Therefore, the Court below ordered substituted service by newspaper publication. Thereafter the suit proceeded ex-parte and an ex--parte decree came to be passed vide judgment and decree dated 12.02.2004. The Bank subsequently approached the Debts Recovery Tribunal for issuance of the recovery certificate. The DRT, Chennai issued a notice dated 07.06.2013 in the name of the appellants calling upon them to pay a sum of Rs.47,21,320.53. The said notice was also sent to the address at Chennai which property according to the appellants was already sold in the year 2002. According to the appellants when appellant no.2 visited India in the year 2014, he become aware of the recovery certificate on 29.03.2014 and the ex--parte decree. The appellants hereinoriginal defendants therefore filed the application before the learned Trial Court to set aside the ex--parte judgment and decree dated 12.02.2004. The said application came to be dismissed by the learned Trial Court. The revision application against the order passed by the learned Trial Court dismissing the application to set aside the ex--parte judgment and decree has also been dismissed by the High Court by the impugned judgment and order. 2.1 At the time of hearing of the present appeal it was stated at the Bar that pursuant to the order passed by the High Court, the petitioners have already deposited 50% of the decretal amount. This Court passed an order dated 26.11.2021 that on deposit of the balance 50% of the decretal amount with the Registry of this Court, notice shall be issued. It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court). 3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice.
### Response:
1
### Explanation:
It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court).3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice.
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U. Raghavendra Acharya Vs. State Of Karnataka | has become final as the State of Karnataka did not prefer any appeal thereagainst.28. The impugned orders furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1.1.1996, vested to the appellants in terms of Government notification read with Rule 296 of the Rules.29. As the amount calculated on the basis of the revised scales of pay on and from 1.1.1996 to 31.3.1998 have not been paid to the appellants by the State of Karnataka as ex gratia, and in fact was paid by way of emoluments to which the appellants became entitled to in terms of their conditions of service, which in turn are governed by the statutory rules, they acquired a vested right therein. If the appellants became entitled to the benefits of the revised scales of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules, there would be reduction of pension with retrospective effect which would be violative of Articles 14 and 16 of the Constitution of India.30. In Chairman, Railway Board and Ors. vs. C.R. Rangadhamaiah and Ors. [1997 (6) SCC 623 ], a Constitution Bench of this Court opined: "Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement." 31. The appellants had retired from service. The State therefore could not have amended the statutory rules adversely affecting their pension with retrospective effect. In Subrata Sen and Ors. vs. Union of India and Ors. [2001 (8) SCC 71 ], a Division Bench of this Court applying the principles laid down in D.S. Nakara vs. Union of India [1983 (1) SCC 305 ], observed: "In our view the aforesaid para does not in any way support the contention of the respondents. On the contrary, on parity of reasoning, we would also reiterate that let us be clear about this misconception. Firstly, the Pension Scheme including the liberalised scheme available to the employees is non-contributory in character. Payment of pension does not depend upon Pension Fund. It is the liability undertaken by the Company under the Rules and whenever becomes due and payable, is to be paid. As observed in Nakara case (1983 (1) SCC 305 ), pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. Maybe that in the present case, the trust for Pension Fund is created for income tax purposes or for smooth payment of pension, but that would not affect the liability of the employer to pay monthly pension calculated as per the Rules on retirement from service and this retirement benefit is not based on availability of Pension Fund. There is no question of pensioners dividing the Pension Fund or affecting the pro rata share on addition of new members to the Scheme. As per Rule 1 quoted above, an employee would become a member of the Fund as soon as he enters into a specified category of service of the Company. Under Rule 8, trustees may withhold or discontinue a pension or annuity or any part thereof payable to a member or his dependants, and that pension amount is non-assignable. Further, the payment of pension was the liability of the employer as per the Rules and that liability is required to be discharged by the Union of India in lieu of its taking over of the Company. The rights of the employees (including retired) are protected under Section 11 of the Burmah Oil Company [Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited] Act, 1981." 32. Yet again, in State of West Bengal and Anr. vs. W.B. Govt. Pensioners Associations and Ors. [2002 (2) SCC 179 ], this Court stated the law in the following terms: "Because the scales of pay had been revised from 1.1.1986, the recomputation of pension for such employees as had been granted the revised scales of necessity was limited to the same cut-off date. All that the impugned Memorandum No.4056-F dated 25.4.1990 did was to recompute the benefits in favour of post- 1.1.1986 retirees according to the existing formula as provided by Memorandum No.7530-F and No.7531-F, both dated 6.7.1988. The same formula continues to be applied to the pre-1986 pensioners is only on account of the revision of pay scales and not on account of failure of the State Government to equitably apply the liberalised Pension Scheme formula. The quantum of the emoluments formed no part of the formula for grant of pension during 1986 to 1995." [Also see K.L. Rathee vs. Union of India & Ors., 1997 (6) SCC 7 , and Indian Ex-Services League & Ors. vs. Union of India, 1991 (2) SCC 104 ] 33. It is also trite that persons similarly situated cannot be discriminated against. [See K.T. Veerappa & Ors. vs. State of Karnataka & Ors., 2006 (4) SCALE 293 ]. 34. | 1[ds]The fact that the appellants herein were treated to be at par with the holders of similar posts in Government Colleges is neither denied nor disputed. The appellants indisputably are governed by the UGC scales of pay. They are entitled to the pensionary benefits also. They had been given the benefits of the revision of scales of pay by 10th Pay Revision Committee w.e.f. 1.1.1986. The pensionary benefits payable to them on attaining the age of superannuation or death were also stated to be at par with the employees of the State Government. The State of Karnataka, as noticed hereinbefore, for all intent and purport, has treated the teachers of the Government Aided Colleges and the Regional Engineering Colleges on the one hand and the teachers of the colleges run by the State itself on the other hand at par. Even the financial rules were made applicable to them in terms of the notifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may not be applicable so far as the appellants are concerned, it now stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of computation of pensionary benefits. Therefore there cannot be any doubt whatsoever that the term "Emoluments" as contained in Rule 296 of the Rules would also apply to the case of the appellants. Rule 296 of the Rules reads as under: "296. In respect of retirement or death while in service of Government Servants on or after first day of July, 1993, the term "Emoluments" for the purpose of this Chapter means, the Basic pay drawn by the Government servant in the scale of pay applicable to the post on the date of retirement or death and includes the following, but does not include pay and allowance drawn from a source other than the Consolidated Fund of the State,-Note:- (a) Basic pay means the pay drawn in the time scale of pay applicable to the post immediately before retirement or death."21. Note (a) appended to the Rule 296, states that basic pay would mean the pay drawn in the time scale of pay applicable to the post immediately before the retirement or death. Other rules being Rule 296B, 296C, 296D, etc. specifying different dates of retirement or death used similar terminology. Rule 297 provides that the term "average emoluments" means the average calculated upon the last three years of service.22. It is one thing to say that the State can fix a cut off date unless and until the same is held to be arbitrary or discriminatory in nature, the same would be given effect for carrying out the purpose for which it was fixed.. In this case, the cut-off date for all intent and purport had been fixed as 1.1.1996. It is, thus, not a case where cut-off date was fixed as 1.4.1998 as the State merely intended to confer only same benefits. It is, thus, also not a case like Transmission Corporation, A.P. Ltd. vs. P. Ramachandra Rao & Anr. [2006 (4) SCALE 362 , where a section of the employees were excluded from being given the benefit of revised pension as they had retired prior to the cut-off date.23. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1.1.1996, thus could not have been denied to the appellants. The stand of the State of Karnataka that the pensionary benefits had been conferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of the revision of scales of pay to its own employees had been conferred from 1.1.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1.1.1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the concerned employees despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such notification as the appellants had been derived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions.24. The contention of the State that the matter relating to the grant of pensionary benefits vis-a-vis the revision in the scales of pay stands on different footing, thus, must be rejected.25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement.26. These appeals involve the question of revision of pay and consequent revision in pension and not the grant of pension for the first time. Only the modality of computing the quantum of pension was required to be determined in terms of the notification issued by the State of Karnataka. For the said purpose, Rule 296 of the Rules was made applicable. Once this rule became applicable, indisputably the computation of pensionary benefits was required to be carried out in terms thereof. The Pension Rules envisage that pension should be calculated only on the basis of the emoluments last drawn. No order, therefore, could be issued which would be contrary to or inconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a conscious decision to extend the benefit of the UGC pay scales w.e.f. 1.1.1996, to the appellants allowing them to draw their pay and allowances in terms thereof, we fail to see any reason as to why the pensionary benefits would not be extended to them from the said date.27. In fact the status of the appellants that they were at par with teachers of the Government colleges was not disputed. A Division Bench of the Karnataka High Court in V.P. Babar & Ors. vs. State of Karnataka (W.P. Nos.32163-32208/1998) has clearly held so. It has not been disputed that the said judgment has become final as the State of Karnataka did not prefer any appeal thereagainst.28. The impugned orders furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1.1.1996, vested to the appellants in terms of Government notification read with Rule 296 of the Rules.29. As the amount calculated on the basis of the revised scales of pay on and from 1.1.1996 to 31.3.1998 have not been paid to the appellants by the State of Karnataka as ex gratia, and in fact was paid by way of emoluments to which the appellants became entitled to in terms of their conditions of service, which in turn are governed by the statutory rules, they acquired a vested right therein. If the appellants became entitled to the benefits of the revised scales of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules, there would be reduction of pension with retrospective effect which would be violative of Articles 14 and 16 of the Constitution of India. | 1 | 5,284 | 1,584 | ### 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:
has become final as the State of Karnataka did not prefer any appeal thereagainst.28. The impugned orders furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1.1.1996, vested to the appellants in terms of Government notification read with Rule 296 of the Rules.29. As the amount calculated on the basis of the revised scales of pay on and from 1.1.1996 to 31.3.1998 have not been paid to the appellants by the State of Karnataka as ex gratia, and in fact was paid by way of emoluments to which the appellants became entitled to in terms of their conditions of service, which in turn are governed by the statutory rules, they acquired a vested right therein. If the appellants became entitled to the benefits of the revised scales of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules, there would be reduction of pension with retrospective effect which would be violative of Articles 14 and 16 of the Constitution of India.30. In Chairman, Railway Board and Ors. vs. C.R. Rangadhamaiah and Ors. [1997 (6) SCC 623 ], a Constitution Bench of this Court opined: "Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement." 31. The appellants had retired from service. The State therefore could not have amended the statutory rules adversely affecting their pension with retrospective effect. In Subrata Sen and Ors. vs. Union of India and Ors. [2001 (8) SCC 71 ], a Division Bench of this Court applying the principles laid down in D.S. Nakara vs. Union of India [1983 (1) SCC 305 ], observed: "In our view the aforesaid para does not in any way support the contention of the respondents. On the contrary, on parity of reasoning, we would also reiterate that let us be clear about this misconception. Firstly, the Pension Scheme including the liberalised scheme available to the employees is non-contributory in character. Payment of pension does not depend upon Pension Fund. It is the liability undertaken by the Company under the Rules and whenever becomes due and payable, is to be paid. As observed in Nakara case (1983 (1) SCC 305 ), pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. Maybe that in the present case, the trust for Pension Fund is created for income tax purposes or for smooth payment of pension, but that would not affect the liability of the employer to pay monthly pension calculated as per the Rules on retirement from service and this retirement benefit is not based on availability of Pension Fund. There is no question of pensioners dividing the Pension Fund or affecting the pro rata share on addition of new members to the Scheme. As per Rule 1 quoted above, an employee would become a member of the Fund as soon as he enters into a specified category of service of the Company. Under Rule 8, trustees may withhold or discontinue a pension or annuity or any part thereof payable to a member or his dependants, and that pension amount is non-assignable. Further, the payment of pension was the liability of the employer as per the Rules and that liability is required to be discharged by the Union of India in lieu of its taking over of the Company. The rights of the employees (including retired) are protected under Section 11 of the Burmah Oil Company [Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited] Act, 1981." 32. Yet again, in State of West Bengal and Anr. vs. W.B. Govt. Pensioners Associations and Ors. [2002 (2) SCC 179 ], this Court stated the law in the following terms: "Because the scales of pay had been revised from 1.1.1986, the recomputation of pension for such employees as had been granted the revised scales of necessity was limited to the same cut-off date. All that the impugned Memorandum No.4056-F dated 25.4.1990 did was to recompute the benefits in favour of post- 1.1.1986 retirees according to the existing formula as provided by Memorandum No.7530-F and No.7531-F, both dated 6.7.1988. The same formula continues to be applied to the pre-1986 pensioners is only on account of the revision of pay scales and not on account of failure of the State Government to equitably apply the liberalised Pension Scheme formula. The quantum of the emoluments formed no part of the formula for grant of pension during 1986 to 1995." [Also see K.L. Rathee vs. Union of India & Ors., 1997 (6) SCC 7 , and Indian Ex-Services League & Ors. vs. Union of India, 1991 (2) SCC 104 ] 33. It is also trite that persons similarly situated cannot be discriminated against. [See K.T. Veerappa & Ors. vs. State of Karnataka & Ors., 2006 (4) SCALE 293 ]. 34.
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1
### Explanation:
same would be given effect for carrying out the purpose for which it was fixed.. In this case, the cut-off date for all intent and purport had been fixed as 1.1.1996. It is, thus, not a case where cut-off date was fixed as 1.4.1998 as the State merely intended to confer only same benefits. It is, thus, also not a case like Transmission Corporation, A.P. Ltd. vs. P. Ramachandra Rao & Anr. [2006 (4) SCALE 362 , where a section of the employees were excluded from being given the benefit of revised pension as they had retired prior to the cut-off date.23. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1.1.1996, thus could not have been denied to the appellants. The stand of the State of Karnataka that the pensionary benefits had been conferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of the revision of scales of pay to its own employees had been conferred from 1.1.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1.1.1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the concerned employees despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such notification as the appellants had been derived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions.24. The contention of the State that the matter relating to the grant of pensionary benefits vis-a-vis the revision in the scales of pay stands on different footing, thus, must be rejected.25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement.26. These appeals involve the question of revision of pay and consequent revision in pension and not the grant of pension for the first time. Only the modality of computing the quantum of pension was required to be determined in terms of the notification issued by the State of Karnataka. For the said purpose, Rule 296 of the Rules was made applicable. Once this rule became applicable, indisputably the computation of pensionary benefits was required to be carried out in terms thereof. The Pension Rules envisage that pension should be calculated only on the basis of the emoluments last drawn. No order, therefore, could be issued which would be contrary to or inconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a conscious decision to extend the benefit of the UGC pay scales w.e.f. 1.1.1996, to the appellants allowing them to draw their pay and allowances in terms thereof, we fail to see any reason as to why the pensionary benefits would not be extended to them from the said date.27. In fact the status of the appellants that they were at par with teachers of the Government colleges was not disputed. A Division Bench of the Karnataka High Court in V.P. Babar & Ors. vs. State of Karnataka (W.P. Nos.32163-32208/1998) has clearly held so. It has not been disputed that the said judgment has become final as the State of Karnataka did not prefer any appeal thereagainst.28. The impugned orders furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1.1.1996, vested to the appellants in terms of Government notification read with Rule 296 of the Rules.29. As the amount calculated on the basis of the revised scales of pay on and from 1.1.1996 to 31.3.1998 have not been paid to the appellants by the State of Karnataka as ex gratia, and in fact was paid by way of emoluments to which the appellants became entitled to in terms of their conditions of service, which in turn are governed by the statutory rules, they acquired a vested right therein. If the appellants became entitled to the benefits of the revised scales of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules, there would be reduction of pension with retrospective effect which would be violative of Articles 14 and 16 of the Constitution of India.
|
Union of India (UOI) and Ors Vs. SANT LAL & ORS.ETC.ETC | still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered. 11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure. 23. The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise. 24. The decisions of this Court in Uma Devi and ML Kesari were considered by a two-judge bench of this Court in Narendra Kumar Tiwari v. State of Jharkhand (2018) 8 SCC 238. Justice Madan Lokur construed the decision in Uma Devi in the following terms: 7. The purpose and intent of the decision in Umadevi was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those irregularly appointed in the past.... 25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Uma Devi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Uma Devi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (the Regularisation Rules) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Uma Devi, ML Kesari and Narendra Kumar Tiwari. 26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. | 1[ds]13. We find merit in the contention that the direction to consider the casual workers for regularization in other establishments was not justified.14. We must, at the outset, note that the earlier decision of the Tribunal was rendered on 6 January, 2006 while the decision of the High Court was rendered on 23 March, 2006. The judgment of the Constitution Bench of this Court in Secretary, State of Karnataka v. Uma Devi (3) (2006) 4 SCC 1 was delivered on 10 April, 200619. In the present case, the original order passed by the Tribunal did not contain a mandamus for regularization. The order mandated that a seniority list should be maintained by the Union of India and that the possibility of regularizing the casual workmen at the Regional Training Institute should be considered against existing and future vacancies in Group D posts. Acting on the basis of the decision of the Tribunal, which was affirmed by the High Court, the Union of India proceeded to formulate a seniority list and, in fact, regularized at least four individuals. The judgment of the High Court attained finality. Even before the decision in Uma Devi, as the Tribunal noted, the workmen had put in over twelve years of service. The Tribunal, in our view, justifiably held that the action of selecting juniors for regularization, by-passing in the process, persons who had put in longer years of service was manifestly unfair and arbitrary. This direction of the Tribunal has been affirmed by the High Court in its impugned decision. The arbitrariness in the conduct of the authorities at the Institute is writ large in the facts of this case. Picking up individuals for regularization, while ignoring seniors shows that a favoured few have been rewarded. This is arbitrary20. Following the logic of the two decisions of this Court which have been noted earlier, we are of the view that the decision in Uma Devi cannot be used as a charter to discriminate between similarly placed employees, once the Union of India in fact takes a decision to regularize the individuals borne on a seniority list. This decision, as we have already noted earlier, was taken in pursuance of the judgment of the Tribunal and of the High Court both of which were rendered before the decision in Uma Devi23. The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise24. The decisions of this Court in Uma Devi and ML Kesari were considered by a two-judge bench of this Court in Narendra Kumar Tiwari v. State of Jharkhand (2018) 8 SCC 238. Justice Madan Lokur construed the decision in Uma Devi in the following terms:7. The purpose and intent of the decision in Umadevi was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those irregularly appointed in the past25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Uma Devi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Uma Devi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (the Regularisation Rules) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Uma Devi, ML Kesari and Narendra Kumar TiwariThe High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. | 1 | 3,974 | 1,007 | ### 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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still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered. 11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure. 23. The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise. 24. The decisions of this Court in Uma Devi and ML Kesari were considered by a two-judge bench of this Court in Narendra Kumar Tiwari v. State of Jharkhand (2018) 8 SCC 238. Justice Madan Lokur construed the decision in Uma Devi in the following terms: 7. The purpose and intent of the decision in Umadevi was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those irregularly appointed in the past.... 25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Uma Devi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Uma Devi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (the Regularisation Rules) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Uma Devi, ML Kesari and Narendra Kumar Tiwari. 26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned.
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13. We find merit in the contention that the direction to consider the casual workers for regularization in other establishments was not justified.14. We must, at the outset, note that the earlier decision of the Tribunal was rendered on 6 January, 2006 while the decision of the High Court was rendered on 23 March, 2006. The judgment of the Constitution Bench of this Court in Secretary, State of Karnataka v. Uma Devi (3) (2006) 4 SCC 1 was delivered on 10 April, 200619. In the present case, the original order passed by the Tribunal did not contain a mandamus for regularization. The order mandated that a seniority list should be maintained by the Union of India and that the possibility of regularizing the casual workmen at the Regional Training Institute should be considered against existing and future vacancies in Group D posts. Acting on the basis of the decision of the Tribunal, which was affirmed by the High Court, the Union of India proceeded to formulate a seniority list and, in fact, regularized at least four individuals. The judgment of the High Court attained finality. Even before the decision in Uma Devi, as the Tribunal noted, the workmen had put in over twelve years of service. The Tribunal, in our view, justifiably held that the action of selecting juniors for regularization, by-passing in the process, persons who had put in longer years of service was manifestly unfair and arbitrary. This direction of the Tribunal has been affirmed by the High Court in its impugned decision. The arbitrariness in the conduct of the authorities at the Institute is writ large in the facts of this case. Picking up individuals for regularization, while ignoring seniors shows that a favoured few have been rewarded. This is arbitrary20. Following the logic of the two decisions of this Court which have been noted earlier, we are of the view that the decision in Uma Devi cannot be used as a charter to discriminate between similarly placed employees, once the Union of India in fact takes a decision to regularize the individuals borne on a seniority list. This decision, as we have already noted earlier, was taken in pursuance of the judgment of the Tribunal and of the High Court both of which were rendered before the decision in Uma Devi23. The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise24. The decisions of this Court in Uma Devi and ML Kesari were considered by a two-judge bench of this Court in Narendra Kumar Tiwari v. State of Jharkhand (2018) 8 SCC 238. Justice Madan Lokur construed the decision in Uma Devi in the following terms:7. The purpose and intent of the decision in Umadevi was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those irregularly appointed in the past25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Uma Devi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Uma Devi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (the Regularisation Rules) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Uma Devi, ML Kesari and Narendra Kumar TiwariThe High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned.
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Gujarat State Financial Corporation Vs. Messrs Lotus Hotels Private Limited | refinancing of loan available from IDBI. In such situation, the first contention of Mr. Bhatt cannot be accepted.9. It was next contended that the dispute between the parties is in the realm of contract and even if there was a concluded contract between the parties about grant and acceptance of loan, the failure of the Corporation to carry out its part of the obligation may amount to breach of contract for which a remedy lies elsewhere but a writ of mandamus cannot be issued compelling the Corporation to specifically perform the contract. It is too late in the day to contend that the instrumentality of the State which would be other authority under Article 12 of the Constitution can commit breach of a solemn under taking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it musts be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporation Act. 1955 is an instrumentality of the State and would be other authority under Article 12 of the Constitution. By its letter of offer dated July 24, 1978 and the subsequent agreement dated February 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of Rs. 30 lakhs to the respondent. Acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up a 4-star hotel at Baroda. The agreement to advance the loan was entered into in performance of the statutory duty cast on the Corporation by the statute under which it was created and set up. On its solemn promise evidenced by the aforementioned two documents, the respondent incurred expenses, suffered liabilities to set up a hotel. Presumably, if the loan was not forthcoming, the respondent may not have undertaken such a huge project. Acting on the promise of the appellant evidenced by documents, the respondent proceeded to suffer further liabilities to implement and execute the project. In the back drop of this incontrovertible fact situation, the principle of promissory estoppel would come into play. In Motilal Padampat Sugar Mills Co. (P.) Ltd. v. State of U. P., this court observed as under : [SCC para 8, p. 425 : SCC (Tax) p. 160]The true principle of promissory estoppel, therefore, seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.11. Jit Ram Shiv Kumar v. State of Haryana which slightly differs from the view taken by this court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme enters into an agreement and makes a representations under a scheme enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to regulate the officer to act according to the scheme and the agreement or the representation. The officer cannot arbitrarily on his mere whim ignore his promise on some undefined and undisclosed grounds of necessity or changed the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and therefore also the principle of promissory estoppel can be invoked in this case.12. Viewing the matter from a slightly different angle altogether it would appear that the appellant is acting in a very unreasonable manner. It is not in dispute that the appellant is an instrumentality of the Government and would be other authority under Article 12 of the Constitution. If it be so, as held by this court in R. D. Shetty v. International Airport Authority of India the rule inhibiting arbitrary action by the Government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be conformity with some principle which meets the test of reason and relevance.13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. | 0[ds]Both the learned Single Judge and the Division Bench of the High Court have concurrently held that the sanctioning of the loan by the Corporation in favour of the respondent was not conditional upon IDBI agreeing and undertaking to refinance the loan. In this connection, a reference to Clauses 2 and 5 of the letter dated July 27, 1978 by the appellant to the respondent setting out the terms and conditions subject to which loan was sanctioned would be advantageous :2. Rate of interest will be 12 1/2 per cent p. a. if refinance is available from Industrial Development Bank of India at the rate of 9 per cent p. a. otherwise it will be at the rate of 13 per cent p. a. Higher rate of interest at 6 per cent over the normal rate of interest will be charged on the amount in default.5. Commitment charge at the rate of 1 per cent p. a. on the amount of loan not drawn out of the loan sanctioned shall be paid from the date as advised by the Industrial Development Bank of India, if refinance is sanctioned. In case, refinance is not sanctioned by the Industrial Development Bank of India, commitment charge at the rate of 1 per cent p. a. on the amount of loan undrawn out of loan sanctioned shall be paid from the expiry of six months from the date of sanction.A bare perusal of the clauses would show that the loan sanctioned by the appellant in favour of the respondent was not specifically subject to the condition upon the IDBI agreeing and undertaking to refinance the loan. In fact, refinancing of the loan by IDBI had an impact on the rate of interest only. This clearly transpires form Clause 2 which provides that if refinance is available from IDBI at 9 per cent p. a., the rate of interest payable by the respondent to the appellant will be 12 1/2 per cent p. a. otherwise it will be 13 per cent p. a. In Clause 5 it is stated that commitment charge at 1 per cent p. a. on the grant of loan not drawn out of the sanctioned amount shall be paid from the date as advised by IDBI if refinance is sanctioned but in case refinance is not sanctioned by IDBI commitment charge at 1 per cent p. a. on the amount of loan undrawn out of the loan sanctioned shall be paid from the expiry of six months from the date of sanction. Thus refinancing of the loan by IDBI was to have an impact on the rate of interest and the commitment charge and the sanctioning of the loan was not conditional upon refinance from IDBI available. In fact consequences of IDBI not agreeing to refinance loan are appellant in the agreement. The consequence was not that the appellant would be discharged from performing the agreement but it would only be entitled to higher rate of interest and liability to commitment charge from a certain date, but the agreement to advance loan would remain unaltered and binding. When these two clauses were pointed out to Mr. Bhatt, he could hardly pursue the point any more. The parties had envisaged a situation where the refinance of the loan may not be available from IDBI. The obligation undertaken by the appellant to sanction the loan was independent of a refinancing of loan available from IDBI. In such situation, the first contention of Mr. Bhatt cannot beis too late in the day to contend that the instrumentality of the State which would be other authority under Article 12 of the Constitution can commit breach of a solemn under taking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it musts be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporation Act. 1955 is an instrumentality of the State and would be other authority under Article 12 of the Constitution.By its letter of offer dated July 24, 1978 and the subsequent agreement dated February 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of Rs. 30 lakhs to the respondent. Acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up ahotel at Baroda. The agreement to advance the loan was entered into in performance of the statutory duty cast on the Corporation by the statute under which it was created and set up. On its solemn promise evidenced by the aforementioned two documents, the respondent incurred expenses, suffered liabilities to set up a hotel. Presumably, if the loan was not forthcoming, the respondent may not have undertaken such a huge project. Acting on the promise of the appellant evidenced by documents, the respondent proceeded to suffer further liabilities to implement and execute the project. In the back drop of this incontrovertible fact situation, the principle of promissory estoppel would come into play. In Motilal Padampat Sugar Mills Co. (P.) Ltd. v. State of U. P., this court observed as under : [SCC para 8, p. 425 : SCC (Tax) p. 160]The true principle of promissory estoppel, therefore, seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is anyrelationship between the parties or not.10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.11. Jit Ram Shiv Kumar v. State of Haryana which slightly differs from the view taken by this court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme enters into an agreement and makes a representations under a scheme enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to regulate the officer to act according to the scheme and the agreement or the representation. The officer cannot arbitrarily on his mere whim ignore his promise on some undefined and undisclosed grounds of necessity or changed the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and therefore also the principle of promissory estoppel can be invoked in this case.12. Viewing the matter from a slightly different angle altogether it would appear that the appellant is acting in a very unreasonable manner. It is not in dispute that the appellant is an instrumentality of the Government and would be other authority under Article 12 of the Constitution. If it be so, as held by this court in R. D. Shetty v. International Airport Authority of India the rule inhibiting arbitrary action by the Government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be conformity with some principle which meets the test of reason and relevance.13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty by other authority as envisaged by Article 12. | 0 | 2,855 | 1,602 | ### 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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refinancing of loan available from IDBI. In such situation, the first contention of Mr. Bhatt cannot be accepted.9. It was next contended that the dispute between the parties is in the realm of contract and even if there was a concluded contract between the parties about grant and acceptance of loan, the failure of the Corporation to carry out its part of the obligation may amount to breach of contract for which a remedy lies elsewhere but a writ of mandamus cannot be issued compelling the Corporation to specifically perform the contract. It is too late in the day to contend that the instrumentality of the State which would be other authority under Article 12 of the Constitution can commit breach of a solemn under taking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it musts be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporation Act. 1955 is an instrumentality of the State and would be other authority under Article 12 of the Constitution. By its letter of offer dated July 24, 1978 and the subsequent agreement dated February 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of Rs. 30 lakhs to the respondent. Acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up a 4-star hotel at Baroda. The agreement to advance the loan was entered into in performance of the statutory duty cast on the Corporation by the statute under which it was created and set up. On its solemn promise evidenced by the aforementioned two documents, the respondent incurred expenses, suffered liabilities to set up a hotel. Presumably, if the loan was not forthcoming, the respondent may not have undertaken such a huge project. Acting on the promise of the appellant evidenced by documents, the respondent proceeded to suffer further liabilities to implement and execute the project. In the back drop of this incontrovertible fact situation, the principle of promissory estoppel would come into play. In Motilal Padampat Sugar Mills Co. (P.) Ltd. v. State of U. P., this court observed as under : [SCC para 8, p. 425 : SCC (Tax) p. 160]The true principle of promissory estoppel, therefore, seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.11. Jit Ram Shiv Kumar v. State of Haryana which slightly differs from the view taken by this court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme enters into an agreement and makes a representations under a scheme enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to regulate the officer to act according to the scheme and the agreement or the representation. The officer cannot arbitrarily on his mere whim ignore his promise on some undefined and undisclosed grounds of necessity or changed the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and therefore also the principle of promissory estoppel can be invoked in this case.12. Viewing the matter from a slightly different angle altogether it would appear that the appellant is acting in a very unreasonable manner. It is not in dispute that the appellant is an instrumentality of the Government and would be other authority under Article 12 of the Constitution. If it be so, as held by this court in R. D. Shetty v. International Airport Authority of India the rule inhibiting arbitrary action by the Government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be conformity with some principle which meets the test of reason and relevance.13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty.
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loan would remain unaltered and binding. When these two clauses were pointed out to Mr. Bhatt, he could hardly pursue the point any more. The parties had envisaged a situation where the refinance of the loan may not be available from IDBI. The obligation undertaken by the appellant to sanction the loan was independent of a refinancing of loan available from IDBI. In such situation, the first contention of Mr. Bhatt cannot beis too late in the day to contend that the instrumentality of the State which would be other authority under Article 12 of the Constitution can commit breach of a solemn under taking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was not disputed and in fairness to Mr. Bhatt, it musts be said that he did not dispute that the Corporation which is set up under Section 3 of the State Financial Corporation Act. 1955 is an instrumentality of the State and would be other authority under Article 12 of the Constitution.By its letter of offer dated July 24, 1978 and the subsequent agreement dated February 1, 1979 the appellant entered into a solemn agreement in performance of its statutory duty to advance the loan of Rs. 30 lakhs to the respondent. Acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up ahotel at Baroda. The agreement to advance the loan was entered into in performance of the statutory duty cast on the Corporation by the statute under which it was created and set up. On its solemn promise evidenced by the aforementioned two documents, the respondent incurred expenses, suffered liabilities to set up a hotel. Presumably, if the loan was not forthcoming, the respondent may not have undertaken such a huge project. Acting on the promise of the appellant evidenced by documents, the respondent proceeded to suffer further liabilities to implement and execute the project. In the back drop of this incontrovertible fact situation, the principle of promissory estoppel would come into play. In Motilal Padampat Sugar Mills Co. (P.) Ltd. v. State of U. P., this court observed as under : [SCC para 8, p. 425 : SCC (Tax) p. 160]The true principle of promissory estoppel, therefore, seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is anyrelationship between the parties or not.10. Thus the principle of promissory estoppel would certainly estop the Corporation from backing out of its obligation arising from a solemn promise made by it to the respondent.11. Jit Ram Shiv Kumar v. State of Haryana which slightly differs from the view taken by this court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme enters into an agreement and makes a representations under a scheme enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to regulate the officer to act according to the scheme and the agreement or the representation. The officer cannot arbitrarily on his mere whim ignore his promise on some undefined and undisclosed grounds of necessity or changed the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal. The respondent acting upon the solemn promise made by the appellant incurred huge expenditure and if the appellant is not held to its promise, the respondent would be put in a very disadvantageous position and therefore also the principle of promissory estoppel can be invoked in this case.12. Viewing the matter from a slightly different angle altogether it would appear that the appellant is acting in a very unreasonable manner. It is not in dispute that the appellant is an instrumentality of the Government and would be other authority under Article 12 of the Constitution. If it be so, as held by this court in R. D. Shetty v. International Airport Authority of India the rule inhibiting arbitrary action by the Government would equally apply where such corporation dealing with the public whether by way of giving jobs or entering into contracts or otherwise and it cannot act arbitrarily and its action must be conformity with some principle which meets the test of reason and relevance.13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty by other authority as envisaged by Article 12.
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Bikash Bhushan Ghosh Vs. M/S Novartis India Limited | section, null and void, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that section and not otherwise. 20. The reference to section 578, now section 99, C.P.C. in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. 21. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99, C.P.C. and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act." 22. {See also MD. Army Welfare Housing Organisation v. Sumangal Services (P) Ltd [(2004) 9 SCC 619] 23. Yet again appellants being workmen, their services were protected in terms of the Industrial Disputes Act, 1947. If their services were protected, an order of termination was required to be communicated. Communication of an order of termination itself may give rise to a cause of action. An order of termination takes effect from the date of communication of the said order. In State of Punjab v. Amar Singh Harika [ A.I.R. 1966 SC 1313] , this Court held; "(11) ... It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951." 24. {See also Ranjit Singh v. Union of India [(2006) 4 SCC 153] | 1[ds]10. As the Division Bench of the High Court did not enter into the merit of the matter, we do not intend to deal with the questions as to whether any conciliation proceedings was, in relation to the orders of transfer passed as against the appellants, in fact pending before the Deputy Labour Commissioner, West Bengal or not. Appellants, however, in our opinion could not have questioned the orders of transfer in view of the nature of the industrial dispute referred to by the State of West Bengal for determination thereof by the III Industrial Tribunal, West Bengal. The orders of transfer were, thus, not in issue before the learned Tribunal.11. It is, however, not disputed that the orders of termination were served upon the appellant at Calcutta. The orders of termination as against them, were passed for not obeying the orders of transfer. The transfer of the appellants, therefore, had some nexus with the order of their termination from services. It is, therefore, not correct to contend that the State of West Bengal was not the appropriate government.With respect to the Division Bench, we do not think that it has posed unto itself a correct question of law. It is not in dispute that the appellants did not join their duties at the transferred places. According to them, as the orders of transfer were illegal, their services were terminated for not complying therewith. The assertion of the respondent that the appellant were relieved from job was unilateral. If the orders of transfer were to be set aside, they would be deemed to be continuing to be posted in Calcutta. The legality of the orders of transfer, thus, had a direct nexus with the orders of termination. | 1 | 4,249 | 326 | ### Instruction:
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section, null and void, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that section and not otherwise. 20. The reference to section 578, now section 99, C.P.C. in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. 21. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99, C.P.C. and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act." 22. {See also MD. Army Welfare Housing Organisation v. Sumangal Services (P) Ltd [(2004) 9 SCC 619] 23. Yet again appellants being workmen, their services were protected in terms of the Industrial Disputes Act, 1947. If their services were protected, an order of termination was required to be communicated. Communication of an order of termination itself may give rise to a cause of action. An order of termination takes effect from the date of communication of the said order. In State of Punjab v. Amar Singh Harika [ A.I.R. 1966 SC 1313] , this Court held; "(11) ... It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951." 24. {See also Ranjit Singh v. Union of India [(2006) 4 SCC 153]
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10. As the Division Bench of the High Court did not enter into the merit of the matter, we do not intend to deal with the questions as to whether any conciliation proceedings was, in relation to the orders of transfer passed as against the appellants, in fact pending before the Deputy Labour Commissioner, West Bengal or not. Appellants, however, in our opinion could not have questioned the orders of transfer in view of the nature of the industrial dispute referred to by the State of West Bengal for determination thereof by the III Industrial Tribunal, West Bengal. The orders of transfer were, thus, not in issue before the learned Tribunal.11. It is, however, not disputed that the orders of termination were served upon the appellant at Calcutta. The orders of termination as against them, were passed for not obeying the orders of transfer. The transfer of the appellants, therefore, had some nexus with the order of their termination from services. It is, therefore, not correct to contend that the State of West Bengal was not the appropriate government.With respect to the Division Bench, we do not think that it has posed unto itself a correct question of law. It is not in dispute that the appellants did not join their duties at the transferred places. According to them, as the orders of transfer were illegal, their services were terminated for not complying therewith. The assertion of the respondent that the appellant were relieved from job was unilateral. If the orders of transfer were to be set aside, they would be deemed to be continuing to be posted in Calcutta. The legality of the orders of transfer, thus, had a direct nexus with the orders of termination.
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Commissioner Of Income-Tax, Mysore Vs. The Canara Bank Ltd | agreed statement of the case the amount of Rs. 3,97,221 was "blocked" and "sterilised" for the period from the devalution of the Indian rupee upto the time of its remittance to India. In the context of these facts the High Court took the view that the appreciation of the value of the money did not arise in the course of the trading operation of the Bank and was not, therefore taxable as revenge receipt. On behalf of the appellant Mr. Hazarnavis submitted that the appellate Tribunal was wrong in holding that there was blocking or sterilisation of the amount. Learned Counsel said that the balance sheets of the Revonue account of the Karachi branch would show that the amount of Rs. 3,97,221 was not lying idle in the Karachi branch but was utilised by it for internal banking operations within Pakistan.We did not, however, permit Mr. Hazarnavis to produce additional evidence in this Court for controverting the findings of fact reached by the appellate Tribunal. It is a matter of significance that the original statement of the case, dated May 15, 1957 and supplementary statement of the case, dated August 14, 1959 were both agreed statements. Before the High Court also the findings of the appellate Tribunal were not challenged on behalf of the Commissioner of Income-tax. On the other hand, it appears that it was conceded by the appellant before the High Court that there was no evidence that the "blocked" balance was, in fact, employed by the Karachi branch for the internal banking operations in Pakistan or for its business in Pakistan and other foreign currencies. It is therefore not permissible for the appellant at this stage to go behind the two statements of the case and to challenge the findings of fact contained therein.The argument was also stressed by Mr. Hazarnavis that the money was a stock-in-trade of the bank and an increment of Rs. 1,70,746 due to the fluctuation in the exchange rate must therefore be treated as incidental to the business of the Bank. We shall assume in favour of the appellant that the money was stock-in-trade of the Bank.But it does not necessarily follow that the increment due to the fluctuation in the exchange rate was due to trading operations in the carrying on of the banking business. On the contrary, it has been found by the appellate Tribunal that the amount of 14. 3,97,221 was a blocked" and "sterilised" balance and the Bank we unable to deal with that amount or use it for any banking purpose between September 1941 and July 1953 when it was finally remitted to India. In our opinion, the money changed its character of stock- in-trade when it was blocked and sterilised and the increment in value owing to the exchange fluctuation must be treated as a capital receipt.It has also been found by the appellate Tribunal that the said amount of Rs. 3,97,221 was not utilised for internal banking operations within Pakistan and it is hence not possible to draw an inference that the Bank realised any profit in the carrying out of its business. We accordingly hold that Mr. Hazarnavis is unable to make good his argument on this aspect of the case and the High Court was right in reaching the conclusion that the exchange difference of Rs. 1,70,746 was not assessable to income-tax.3. In the course of his argument Mr. Hazarnavis relied upon the decision of the Court of Appeal in Imperial Tobacco Co. v. Kelly, (1944) 25 Tax Cas 292. In that case, a tobacco manufacturing company in England with a view to buying tobacco leaf in the U.S.A. during the leaf season, used to provide itself with dollar currency in advance by purchasing the same beforehand. On the outbreak of war, owing to Governmental restrictions the company had to suspend its buying operations in U.S.A. Later, the British Treasury requisitioned the accumulated dollars and paid the company sterling in exchange. The dollars in the meantime having appreciated in value, the company got more sterling than what it originally laid down. It was held by the Court of Appeal that the excess receipts were profits assessable to income-tax and the acquisition of the dollars was the first step in the commercial transaction of the company. The dollar was a commodity of the company and it became a surplus stock to the companys requirements on the restriction on purchase and its original revenue character would not be altered by the circumstance of the Governmental controls requisitioning the dollars. Mr. Hazarnavis also referred to the decision in Landes Brothers v. Simpson, (1935) 19 Tax Cas 62, where a similar view was taken. On the contrary, Counsel for the respondent relied upon the decision in McKinlay (H. M. Inspector of Taxes) v. H. T. Jenkins and Son, Ltd., (1926) 10 Tax Cas 372, in which it was held that the profit by exchange operations would be capital profit if the profit did not come in by way of business but by means of an investment in foreign currencies. In that case, a British company carrying on business in marblas, bought Italian Liras in advance with which to pay in Italy for marbles to be purchased there. But before the time came for purchase, finding that the Lira had appreciated, it sold away the Liras at a profit, and bought a second instalment of Liras to fulfil its contract in time. It was held by Rowlatt, J. that the first instalment of Liras should be regarded as capital lying idle and that the conversion thereof was a speculative transaction in capital. Reference was also made to the decision in Davis v. The Shell Co. of China. Ltd., (1952) 32 Tax Cas 133. But the decision in none of these cases is exactly in point, for the material facts in the present case are different. The question of law arising in the present case must be decided on the particular facts and circumstances found by the appellate Tribunal. | 1[ds]If by virtue of exchange operations profits are made during the course of business and in connection with business transactions, the excess receipts on account of conversion of one currency into another would be revenue receipts. But if the profit by exchange operations comes in, not by way of business of the Bank, the profit would be capital profit. In the present case, the High Court has found, after an analysis of the relevant facts, that the appreciation of the money did not arise in the course of any trading operation. In the year 1949 when there was a devaluation of the Indian rupee, Karachi branch of the Bank was not carrying on any business in foreign currencies. It has been found by the Appellate Tribunal that until April 3, 1951 when the Back was permitted to carry on business in Pakistan currency it carried on no foreign exchange business. Even after such permission was granted and even after the Bank obtained on April 25, 1953 a general licence to carry on business in all foreign currencies the money of the head office was not used for any business in foreign currencies. The appellate Tribunal has found that the money was lying idle in the Karachi branch and it was not utilised in any banking operation and the Karachi branch was merely keeping that money with it for the purpose of remittance to India and awaiting permission of the State Bank of Pakistan. The State Bank of Pakistan granted the permission on July 1, 1953 and the remittance actually took place two days later, i.e., on July 3, 1953. It has been found by the appellate Tribunal that the sum of money was at no material time employed, expanded or used for any banking operation or for any foreign exchangedid not, however, permit Mr. Hazarnavis to produce additional evidence in this Court for controverting the findings of fact reached by the appellate Tribunal. It is a matter of significance that the original statement of the case, dated May 15, 1957 and supplementary statement of the case, dated August 14, 1959 were both agreed statements. Before the High Court also the findings of the appellate Tribunal were not challenged on behalf of the Commissioner of Income-tax. On the other hand, it appears that it was conceded by the appellant before the High Court that there was no evidence that the "blocked" balance was, in fact, employed by the Karachi branch for the internal banking operations in Pakistan or for its business in Pakistan and other foreign currencies. It is therefore not permissible for the appellant at this stage to go behind the two statements of the case and to challenge the findings of fact containedshall assume in favour of the appellant that the money was stock-in-trade of the Bank.But it does not necessarily follow that the increment due to the fluctuation in the exchange rate was due to trading operations in the carrying on of the banking business. On the contrary, it has been found by the appellate Tribunal that the amount of 14. 3,97,221 was a blocked" and "sterilised" balance and the Bank we unable to deal with that amount or use it for any banking purpose between September 1941 and July 1953 when it was finally remitted to India. In our opinion, the money changed its character of stock- in-trade when it was blocked and sterilised and the increment in value owing to the exchange fluctuation must be treated as a capital receipt.It has also been found by the appellate Tribunal that the said amount of Rs. 3,97,221 was not utilised for internal banking operations within Pakistan and it is hence not possible to draw an inference that the Bank realised any profit in the carrying out of its business. We accordingly hold that Mr. Hazarnavis is unable to make good his argument on this aspect of the case and the High Court was right in reaching the conclusion that the exchange difference of Rs. 1,70,746 was not assessable to income-tax. | 1 | 2,043 | 725 | ### Instruction:
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agreed statement of the case the amount of Rs. 3,97,221 was "blocked" and "sterilised" for the period from the devalution of the Indian rupee upto the time of its remittance to India. In the context of these facts the High Court took the view that the appreciation of the value of the money did not arise in the course of the trading operation of the Bank and was not, therefore taxable as revenge receipt. On behalf of the appellant Mr. Hazarnavis submitted that the appellate Tribunal was wrong in holding that there was blocking or sterilisation of the amount. Learned Counsel said that the balance sheets of the Revonue account of the Karachi branch would show that the amount of Rs. 3,97,221 was not lying idle in the Karachi branch but was utilised by it for internal banking operations within Pakistan.We did not, however, permit Mr. Hazarnavis to produce additional evidence in this Court for controverting the findings of fact reached by the appellate Tribunal. It is a matter of significance that the original statement of the case, dated May 15, 1957 and supplementary statement of the case, dated August 14, 1959 were both agreed statements. Before the High Court also the findings of the appellate Tribunal were not challenged on behalf of the Commissioner of Income-tax. On the other hand, it appears that it was conceded by the appellant before the High Court that there was no evidence that the "blocked" balance was, in fact, employed by the Karachi branch for the internal banking operations in Pakistan or for its business in Pakistan and other foreign currencies. It is therefore not permissible for the appellant at this stage to go behind the two statements of the case and to challenge the findings of fact contained therein.The argument was also stressed by Mr. Hazarnavis that the money was a stock-in-trade of the bank and an increment of Rs. 1,70,746 due to the fluctuation in the exchange rate must therefore be treated as incidental to the business of the Bank. We shall assume in favour of the appellant that the money was stock-in-trade of the Bank.But it does not necessarily follow that the increment due to the fluctuation in the exchange rate was due to trading operations in the carrying on of the banking business. On the contrary, it has been found by the appellate Tribunal that the amount of 14. 3,97,221 was a blocked" and "sterilised" balance and the Bank we unable to deal with that amount or use it for any banking purpose between September 1941 and July 1953 when it was finally remitted to India. In our opinion, the money changed its character of stock- in-trade when it was blocked and sterilised and the increment in value owing to the exchange fluctuation must be treated as a capital receipt.It has also been found by the appellate Tribunal that the said amount of Rs. 3,97,221 was not utilised for internal banking operations within Pakistan and it is hence not possible to draw an inference that the Bank realised any profit in the carrying out of its business. We accordingly hold that Mr. Hazarnavis is unable to make good his argument on this aspect of the case and the High Court was right in reaching the conclusion that the exchange difference of Rs. 1,70,746 was not assessable to income-tax.3. In the course of his argument Mr. Hazarnavis relied upon the decision of the Court of Appeal in Imperial Tobacco Co. v. Kelly, (1944) 25 Tax Cas 292. In that case, a tobacco manufacturing company in England with a view to buying tobacco leaf in the U.S.A. during the leaf season, used to provide itself with dollar currency in advance by purchasing the same beforehand. On the outbreak of war, owing to Governmental restrictions the company had to suspend its buying operations in U.S.A. Later, the British Treasury requisitioned the accumulated dollars and paid the company sterling in exchange. The dollars in the meantime having appreciated in value, the company got more sterling than what it originally laid down. It was held by the Court of Appeal that the excess receipts were profits assessable to income-tax and the acquisition of the dollars was the first step in the commercial transaction of the company. The dollar was a commodity of the company and it became a surplus stock to the companys requirements on the restriction on purchase and its original revenue character would not be altered by the circumstance of the Governmental controls requisitioning the dollars. Mr. Hazarnavis also referred to the decision in Landes Brothers v. Simpson, (1935) 19 Tax Cas 62, where a similar view was taken. On the contrary, Counsel for the respondent relied upon the decision in McKinlay (H. M. Inspector of Taxes) v. H. T. Jenkins and Son, Ltd., (1926) 10 Tax Cas 372, in which it was held that the profit by exchange operations would be capital profit if the profit did not come in by way of business but by means of an investment in foreign currencies. In that case, a British company carrying on business in marblas, bought Italian Liras in advance with which to pay in Italy for marbles to be purchased there. But before the time came for purchase, finding that the Lira had appreciated, it sold away the Liras at a profit, and bought a second instalment of Liras to fulfil its contract in time. It was held by Rowlatt, J. that the first instalment of Liras should be regarded as capital lying idle and that the conversion thereof was a speculative transaction in capital. Reference was also made to the decision in Davis v. The Shell Co. of China. Ltd., (1952) 32 Tax Cas 133. But the decision in none of these cases is exactly in point, for the material facts in the present case are different. The question of law arising in the present case must be decided on the particular facts and circumstances found by the appellate Tribunal.
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1
### Explanation:
If by virtue of exchange operations profits are made during the course of business and in connection with business transactions, the excess receipts on account of conversion of one currency into another would be revenue receipts. But if the profit by exchange operations comes in, not by way of business of the Bank, the profit would be capital profit. In the present case, the High Court has found, after an analysis of the relevant facts, that the appreciation of the money did not arise in the course of any trading operation. In the year 1949 when there was a devaluation of the Indian rupee, Karachi branch of the Bank was not carrying on any business in foreign currencies. It has been found by the Appellate Tribunal that until April 3, 1951 when the Back was permitted to carry on business in Pakistan currency it carried on no foreign exchange business. Even after such permission was granted and even after the Bank obtained on April 25, 1953 a general licence to carry on business in all foreign currencies the money of the head office was not used for any business in foreign currencies. The appellate Tribunal has found that the money was lying idle in the Karachi branch and it was not utilised in any banking operation and the Karachi branch was merely keeping that money with it for the purpose of remittance to India and awaiting permission of the State Bank of Pakistan. The State Bank of Pakistan granted the permission on July 1, 1953 and the remittance actually took place two days later, i.e., on July 3, 1953. It has been found by the appellate Tribunal that the sum of money was at no material time employed, expanded or used for any banking operation or for any foreign exchangedid not, however, permit Mr. Hazarnavis to produce additional evidence in this Court for controverting the findings of fact reached by the appellate Tribunal. It is a matter of significance that the original statement of the case, dated May 15, 1957 and supplementary statement of the case, dated August 14, 1959 were both agreed statements. Before the High Court also the findings of the appellate Tribunal were not challenged on behalf of the Commissioner of Income-tax. On the other hand, it appears that it was conceded by the appellant before the High Court that there was no evidence that the "blocked" balance was, in fact, employed by the Karachi branch for the internal banking operations in Pakistan or for its business in Pakistan and other foreign currencies. It is therefore not permissible for the appellant at this stage to go behind the two statements of the case and to challenge the findings of fact containedshall assume in favour of the appellant that the money was stock-in-trade of the Bank.But it does not necessarily follow that the increment due to the fluctuation in the exchange rate was due to trading operations in the carrying on of the banking business. On the contrary, it has been found by the appellate Tribunal that the amount of 14. 3,97,221 was a blocked" and "sterilised" balance and the Bank we unable to deal with that amount or use it for any banking purpose between September 1941 and July 1953 when it was finally remitted to India. In our opinion, the money changed its character of stock- in-trade when it was blocked and sterilised and the increment in value owing to the exchange fluctuation must be treated as a capital receipt.It has also been found by the appellate Tribunal that the said amount of Rs. 3,97,221 was not utilised for internal banking operations within Pakistan and it is hence not possible to draw an inference that the Bank realised any profit in the carrying out of its business. We accordingly hold that Mr. Hazarnavis is unable to make good his argument on this aspect of the case and the High Court was right in reaching the conclusion that the exchange difference of Rs. 1,70,746 was not assessable to income-tax.
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The State Of Rajasthan Vs. Ram Saran | which permits a competent authority to pass in relation to such persons "any order affecting his continuance in such post or office."10. The contention that survives is merely whether the right to hold an officiating post is a legal right and whether it could be stated to be a condition of service that such an officer shall not be reverted except for proper reasons. In our opinion, the matter is concluded by the decision of this Court in Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36 ). There, as here, an officer who was appointed to officiate in Class II service as an Assistant Superintendent, Railway Telegraphs was reverted to his substantive Class III appointment. No doubt, the question there considered was whether on the facts of that case this order of reversion was passed as punishment so as to attract the constitutional protection guaranteed by Art. 311(2) but this Court had also to consider whether an officer appointed to an officiating post had any legal right to continue in that post. As to that Das, C. J. speaking for the majority observed :"The petitioner before us was appointed to a higher post on an officiating basis ..... .He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by Government and therefore his reduction did not operate as a forfeiture of any right and cannot be described as reduction in rank by way of punishment."(Vide also the judgment of this Court in State of Bombay v. F. A. Abraham, C. A. No. 59 of 1961 D/- 12-12-1961 : (AIR 1962 SC 794 )).If he had no legal right to continue in that post it would rather appear that it was one of the conditions of his service that he could, for administrative reasons, be reverted to his substantive appointment. It therefore appears to us that there is no basis for the argument that mere reversion to a substantive post is a breach of the conditions of service. That is why we said that the proviso to sub-s. (7) of S. 115 on which stress is laid by the High Court really affords no assistance to the respondent. The above was, in general, the reasoning upon which the learned Judges of the High Court allowed the petition. We consider that they were in error in so doing and the appeal has accordingly to be allowed.11. It is necessary, now, to mention the first of the points we have set out earlier which learned Counsel for the respondent strenuously pressed upon us. He submitted that the respondent had alleged in his petition a violation of Art. 14 of the Constitution, in that the selection of officers for promotion was determined not on the basis of the seniority of the officers considering the State as a whole but regionwise and this was the gravamen of the charge in this respect made in the petition. In this connection he drew our attention to the terms of S. 2 of the Police Act 5 of 1861 which reads :"2. The entire police-establishment under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled; and shall consist of such number of officers and men, and shall be constituted in such manner as shall from time to time be ordered by the State Government..... .... .... ..............."He also pointed out that in the counter-affidavit filed by the State this splitting up of the State into regions and the determination of seniority and promotion on a regionwise, as distinguished from a Statewise basis, was defended as dictated by administrative considerations. The learned Judges, in their judgment have made a passing reference to this feature of the case and seem to express the opinion that the system of regionwise promotion was productive of inequality and hardship. The difficulty in the way of the respondent, however, is that the plea raised in regard to this matter is of the vaguest character and appears to be designed as affording some support for the main allegations and contentions we have dealt with and not as an independent and distinct ground for impugning the constitutional validity of the scheme of promotion. In consequence of this state of the pleadings the facts and details necessary for sustaining or repelling this contention were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel for the respondent urged that the matter should be remitted to the High Court for a consideration of this issue about the breach of Art. 14 of the Constitution and the constitutional validity of the regionwise seniority lists prepared for promotion, reversion etc. allowing liberty to the parties to lead further evidence on the matter. Having considered the suggestion carefully we have arrived at the conclusion that on the pleadings, as they stand, this question could not be determined satisfactorily. If the issue as to discrimination and a violation of Art. 14 has to be satisfactorily investigated and decided both the parties would have to file amended pleadings in order to focus attention on several details, with the result that this would virtually amount to the filing of a new petition. We consider therefore that if the respondent is so advised he should be at liberty to challenge the order now impugned on these other grounds and that for that purpose it would really be in his interest that he should be permitted to file a fresh petition making necessary allegations and setting forth the requisite facts when the State also would have an opportunity to make its answers to such a plea. It is in the light of this consideration that we have refrained from remanding the case to the High Court for the consideration of this point. | 1[ds]The learned Judges, in their judgment have made a passing reference to this feature of the case and seem to express the opinion that the system of regionwise promotion was productive of inequality and hardship. The difficulty in the way of the respondent, however, is that the plea raised in regard to this matter is of the vaguest character and appears to be designed as affording some support for the main allegations and contentions we have dealt with and not as an independent and distinct ground for impugning the constitutional validity of the scheme of promotion. In consequence of this state of the pleadings the facts and details necessary for sustaining or repelling this contention were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel for the respondent urged that the matter should be remitted to the High Court for a consideration of this issue about the breach of Art. 14 of the Constitution and the constitutional validity of the regionwise seniority lists prepared for promotion, reversion etc. allowing liberty to the parties to lead further evidence on the matter. Having considered the suggestion carefully we have arrived at the conclusion that on the pleadings, as they stand, this question could not be determined satisfactorily. If the issue as to discrimination and a violation of Art. 14 has to be satisfactorily investigated and decided both the parties would have to file amended pleadings in order to focus attention on several details, with the result that this would virtually amount to the filing of a new petition. We consider therefore that if the respondent is so advised he should be at liberty to challenge the order now impugned on these other grounds and that for that purpose it would really be in his interest that he should be permitted to file a fresh petition making necessary allegations and setting forth the requisite facts when the State also would have an opportunity to make its answers to such a plea. It is in the light of this consideration that we have refrained from remanding the case to the High Court for the consideration of this point. | 1 | 4,304 | 392 | ### Instruction:
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which permits a competent authority to pass in relation to such persons "any order affecting his continuance in such post or office."10. The contention that survives is merely whether the right to hold an officiating post is a legal right and whether it could be stated to be a condition of service that such an officer shall not be reverted except for proper reasons. In our opinion, the matter is concluded by the decision of this Court in Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36 ). There, as here, an officer who was appointed to officiate in Class II service as an Assistant Superintendent, Railway Telegraphs was reverted to his substantive Class III appointment. No doubt, the question there considered was whether on the facts of that case this order of reversion was passed as punishment so as to attract the constitutional protection guaranteed by Art. 311(2) but this Court had also to consider whether an officer appointed to an officiating post had any legal right to continue in that post. As to that Das, C. J. speaking for the majority observed :"The petitioner before us was appointed to a higher post on an officiating basis ..... .He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by Government and therefore his reduction did not operate as a forfeiture of any right and cannot be described as reduction in rank by way of punishment."(Vide also the judgment of this Court in State of Bombay v. F. A. Abraham, C. A. No. 59 of 1961 D/- 12-12-1961 : (AIR 1962 SC 794 )).If he had no legal right to continue in that post it would rather appear that it was one of the conditions of his service that he could, for administrative reasons, be reverted to his substantive appointment. It therefore appears to us that there is no basis for the argument that mere reversion to a substantive post is a breach of the conditions of service. That is why we said that the proviso to sub-s. (7) of S. 115 on which stress is laid by the High Court really affords no assistance to the respondent. The above was, in general, the reasoning upon which the learned Judges of the High Court allowed the petition. We consider that they were in error in so doing and the appeal has accordingly to be allowed.11. It is necessary, now, to mention the first of the points we have set out earlier which learned Counsel for the respondent strenuously pressed upon us. He submitted that the respondent had alleged in his petition a violation of Art. 14 of the Constitution, in that the selection of officers for promotion was determined not on the basis of the seniority of the officers considering the State as a whole but regionwise and this was the gravamen of the charge in this respect made in the petition. In this connection he drew our attention to the terms of S. 2 of the Police Act 5 of 1861 which reads :"2. The entire police-establishment under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled; and shall consist of such number of officers and men, and shall be constituted in such manner as shall from time to time be ordered by the State Government..... .... .... ..............."He also pointed out that in the counter-affidavit filed by the State this splitting up of the State into regions and the determination of seniority and promotion on a regionwise, as distinguished from a Statewise basis, was defended as dictated by administrative considerations. The learned Judges, in their judgment have made a passing reference to this feature of the case and seem to express the opinion that the system of regionwise promotion was productive of inequality and hardship. The difficulty in the way of the respondent, however, is that the plea raised in regard to this matter is of the vaguest character and appears to be designed as affording some support for the main allegations and contentions we have dealt with and not as an independent and distinct ground for impugning the constitutional validity of the scheme of promotion. In consequence of this state of the pleadings the facts and details necessary for sustaining or repelling this contention were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel for the respondent urged that the matter should be remitted to the High Court for a consideration of this issue about the breach of Art. 14 of the Constitution and the constitutional validity of the regionwise seniority lists prepared for promotion, reversion etc. allowing liberty to the parties to lead further evidence on the matter. Having considered the suggestion carefully we have arrived at the conclusion that on the pleadings, as they stand, this question could not be determined satisfactorily. If the issue as to discrimination and a violation of Art. 14 has to be satisfactorily investigated and decided both the parties would have to file amended pleadings in order to focus attention on several details, with the result that this would virtually amount to the filing of a new petition. We consider therefore that if the respondent is so advised he should be at liberty to challenge the order now impugned on these other grounds and that for that purpose it would really be in his interest that he should be permitted to file a fresh petition making necessary allegations and setting forth the requisite facts when the State also would have an opportunity to make its answers to such a plea. It is in the light of this consideration that we have refrained from remanding the case to the High Court for the consideration of this point.
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The learned Judges, in their judgment have made a passing reference to this feature of the case and seem to express the opinion that the system of regionwise promotion was productive of inequality and hardship. The difficulty in the way of the respondent, however, is that the plea raised in regard to this matter is of the vaguest character and appears to be designed as affording some support for the main allegations and contentions we have dealt with and not as an independent and distinct ground for impugning the constitutional validity of the scheme of promotion. In consequence of this state of the pleadings the facts and details necessary for sustaining or repelling this contention were not brought into the record, so that admittedly the point could not be decided on the record as it stands. Realising this learned Counsel for the respondent urged that the matter should be remitted to the High Court for a consideration of this issue about the breach of Art. 14 of the Constitution and the constitutional validity of the regionwise seniority lists prepared for promotion, reversion etc. allowing liberty to the parties to lead further evidence on the matter. Having considered the suggestion carefully we have arrived at the conclusion that on the pleadings, as they stand, this question could not be determined satisfactorily. If the issue as to discrimination and a violation of Art. 14 has to be satisfactorily investigated and decided both the parties would have to file amended pleadings in order to focus attention on several details, with the result that this would virtually amount to the filing of a new petition. We consider therefore that if the respondent is so advised he should be at liberty to challenge the order now impugned on these other grounds and that for that purpose it would really be in his interest that he should be permitted to file a fresh petition making necessary allegations and setting forth the requisite facts when the State also would have an opportunity to make its answers to such a plea. It is in the light of this consideration that we have refrained from remanding the case to the High Court for the consideration of this point.
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State of Maharashtra Through The Secretary Vs. Suresh Trading Company | 1. Mr. V. B. Joshi states that he has filed his appearance for the respondents. It shall be taken on record2. The respondents were registered dealers under the Bombay Sales Tax Act, 1959. During the period 1-1-1967 to 31-12-1967 they purchased goods from M/s Sulekha Enterprises Corporation (hereinafter referred to as "Sulekha Enterprises"). Sulekha Enterprises were also registered dealers under the said Act and the bills given to the respondents contained a certificate to the effect that the registration of Sulekha Enterprises was in force on the date of the sales. The respondents thereaffer resold within the State of Maharashtra the goods purchased by them from Sulekha Enterprises. They claimed to deduct from their turnover of sales for the relevant accounting year the resale of the goods purchased from Sulekha Enterprises3. The Sales Tax Officer disallowed the respondents said claim for deduction upon the ground that the registration of Sulekha Enterprises had been cancelled on 20-8-1967, with effect from 1 - - 1967, and that, therefore, on the dates on which the respondents had purchased the goods from a Sulekha Enterprises, Sulekha Enterprises could not be said to be a registered dealer. The Sales Tax Officer also imposed a penalty upon the respondents. The appeal by the respondents to the Commissioner of Sales Tax was dismissed. They went up to the Maharashtra Sales Tax Tribunal. It upheld the disallowance but ordered deletion of the penalty. On the application of the respondents. it stated the following question of law to the High Court"Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the Sales Tax authorities were justified in treating the purchases of the applicants made from Sulekha Enterprises as from an unregistered dealer on the ground that even though the registration certificate of Sulekha Enterprises was cancelled on 25-8-1967, the cancellation thereof was operative with effect from January 1967 insofar as the purchases of the applicants effected from the said party prior to 25-8-1967 were concerned ?" * 4. The High Court answered the question in the negative and in favour of the respondents. The High Court noted that the effect of disallowing the deductions claimed by the respondents was, in substance, to tax transactions which were otherwise not taxable. The condition precedent for becoming entitled to make a tax-free resale was the purchase of the goods which were resold from a registered dealer and the obtaining from that registered dealer of a certificate in this behalf. This condition having been fulfilled, the right of the purchasing dealer to make a tax-free sale accrued to him. Thereafter to hold, by reason of something that had happened subsequent to the date of the purchase, namely, the cancellation of the selling dealers registration with retrospective effect, that the tax-free resales had become liable to tax, would be tantamount to levying tax on the resales with retrospective effect5. In our view, the High Court was right. A purchasing daler is entitled by law to rely upon the certificate of registration of the selling dealer and to act upon it. Whatever may be the effect of a retrospective cancellation upon the selling dealer, it can have no effect upon any person who has acted upon the strength of a registration certificate when the registration was current. The argument on behalf of the department that it was the duty of persons dealing with registered dealers to find out whether a state of facts exists which would justify the cancellation of registration must be rejected. To accept it would be to nullify the provisions of the statute which entitle persons dealing with registered dealers to act upon the strength of registration certificates6. It must also be noted that the learned Advocate General, appearing for the department before the High Court, stated that the genuineness of the transactions between the registered dealer and the respondents was not in doubt and not disputed. This being so, it is difficult to see how there could have been a cancellation of registration with effect from a date that preceded the dates of the transactions and how, accordingly, the respondents could be made liable to pay tax | 0[ds]5. In our view, the High Court was right. A purchasing daler is entitled by law to rely upon the certificate of registration of the selling dealer and to act upon it. Whatever may be the effect of a retrospective cancellation upon the selling dealer, it can have no effect upon any person who has acted upon the strength of a registration certificate when the registration was current. The argument on behalf of the department that it was the duty of persons dealing with registered dealers to find out whether a state of facts exists which would justify the cancellation of registration must be rejected. To accept it would be to nullify the provisions of the statute which entitle persons dealing with registered dealers to act upon the strength of registration certificates6. It must also be noted that the learned Advocate General, appearing for the department before the High Court, stated that the genuineness of the transactions between the registered dealer and the respondents was not in doubt and not disputed. This being so, it is difficult to see how there could have been a cancellation of registration with effect from a date that preceded the dates of the transactions and how, accordingly, the respondents could be made liable to pay tax | 0 | 752 | 230 | ### Instruction:
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1. Mr. V. B. Joshi states that he has filed his appearance for the respondents. It shall be taken on record2. The respondents were registered dealers under the Bombay Sales Tax Act, 1959. During the period 1-1-1967 to 31-12-1967 they purchased goods from M/s Sulekha Enterprises Corporation (hereinafter referred to as "Sulekha Enterprises"). Sulekha Enterprises were also registered dealers under the said Act and the bills given to the respondents contained a certificate to the effect that the registration of Sulekha Enterprises was in force on the date of the sales. The respondents thereaffer resold within the State of Maharashtra the goods purchased by them from Sulekha Enterprises. They claimed to deduct from their turnover of sales for the relevant accounting year the resale of the goods purchased from Sulekha Enterprises3. The Sales Tax Officer disallowed the respondents said claim for deduction upon the ground that the registration of Sulekha Enterprises had been cancelled on 20-8-1967, with effect from 1 - - 1967, and that, therefore, on the dates on which the respondents had purchased the goods from a Sulekha Enterprises, Sulekha Enterprises could not be said to be a registered dealer. The Sales Tax Officer also imposed a penalty upon the respondents. The appeal by the respondents to the Commissioner of Sales Tax was dismissed. They went up to the Maharashtra Sales Tax Tribunal. It upheld the disallowance but ordered deletion of the penalty. On the application of the respondents. it stated the following question of law to the High Court"Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the Sales Tax authorities were justified in treating the purchases of the applicants made from Sulekha Enterprises as from an unregistered dealer on the ground that even though the registration certificate of Sulekha Enterprises was cancelled on 25-8-1967, the cancellation thereof was operative with effect from January 1967 insofar as the purchases of the applicants effected from the said party prior to 25-8-1967 were concerned ?" * 4. The High Court answered the question in the negative and in favour of the respondents. The High Court noted that the effect of disallowing the deductions claimed by the respondents was, in substance, to tax transactions which were otherwise not taxable. The condition precedent for becoming entitled to make a tax-free resale was the purchase of the goods which were resold from a registered dealer and the obtaining from that registered dealer of a certificate in this behalf. This condition having been fulfilled, the right of the purchasing dealer to make a tax-free sale accrued to him. Thereafter to hold, by reason of something that had happened subsequent to the date of the purchase, namely, the cancellation of the selling dealers registration with retrospective effect, that the tax-free resales had become liable to tax, would be tantamount to levying tax on the resales with retrospective effect5. In our view, the High Court was right. A purchasing daler is entitled by law to rely upon the certificate of registration of the selling dealer and to act upon it. Whatever may be the effect of a retrospective cancellation upon the selling dealer, it can have no effect upon any person who has acted upon the strength of a registration certificate when the registration was current. The argument on behalf of the department that it was the duty of persons dealing with registered dealers to find out whether a state of facts exists which would justify the cancellation of registration must be rejected. To accept it would be to nullify the provisions of the statute which entitle persons dealing with registered dealers to act upon the strength of registration certificates6. It must also be noted that the learned Advocate General, appearing for the department before the High Court, stated that the genuineness of the transactions between the registered dealer and the respondents was not in doubt and not disputed. This being so, it is difficult to see how there could have been a cancellation of registration with effect from a date that preceded the dates of the transactions and how, accordingly, the respondents could be made liable to pay tax
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5. In our view, the High Court was right. A purchasing daler is entitled by law to rely upon the certificate of registration of the selling dealer and to act upon it. Whatever may be the effect of a retrospective cancellation upon the selling dealer, it can have no effect upon any person who has acted upon the strength of a registration certificate when the registration was current. The argument on behalf of the department that it was the duty of persons dealing with registered dealers to find out whether a state of facts exists which would justify the cancellation of registration must be rejected. To accept it would be to nullify the provisions of the statute which entitle persons dealing with registered dealers to act upon the strength of registration certificates6. It must also be noted that the learned Advocate General, appearing for the department before the High Court, stated that the genuineness of the transactions between the registered dealer and the respondents was not in doubt and not disputed. This being so, it is difficult to see how there could have been a cancellation of registration with effect from a date that preceded the dates of the transactions and how, accordingly, the respondents could be made liable to pay tax
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S. Khushboo Vs. Kanniammal & Anr | political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellants remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellants remarks. If the complainants vehemently disagreed with the appellants views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574 , which spell out the appropriate approach for examining the scope of `reasonable restrictions under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:-" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg.The Court further held:" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us. Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard. | 1[ds]12. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial.However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts. [See decision of this Court in: M/s Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128 ]. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604 , to take note of two such guidelines which are relevance for the present caseWhere the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.... (7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In M/s Medchl Chemicals & Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000 SC 1869 , this Court observed that a criminal complaint or a charge sheet can only be quashed by superior courts in exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9 , this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14 SCC 466 , this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it wasof the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint.There can be no quarrel about this Courts competence to quash criminal proceedings pending before the subordinate courts. However, this power must be exercised sparingly and with circumspection. In light of the position summarized above, we can examine the present case with two considerations in mind, namely whether the allegations made against the appellant support a prima facie case for the offences mentioned in the respective complaints, and whether the complaints were made in a bona fide manner.15. Perusal of the complaints reveals that most of the allegations have pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are of the view that there is absolutely no basis for proceeding against the appellant in respect of some of the alleged offences. For example, the Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offences mentioned in this statute to proceed against the appellant, who cannot be described as an `advertiser or `publisher by any means. Similarly, Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants grievance is with the publication of what the appellant had stated in a written form. Likewise, some of the complaints have mentioned offences such as those contemplated by Section 153A IPC (`Promoting enmity between different groups etc.,) which have no application to the present case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either.16. Coming to the substance of the complaints, we fail to see how the appellants remarks amount to `obscenity in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if –7 It is lascivious (i.e. expressing or causing sexual desire) or7 Appeals to the prurient interest (i.e. excessive interest in sexual matters), or 7 If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials.In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present case, the appellant takes full responsibility for her statement which was published in `India Today, a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881 , wherein it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.17. This position was later clarified in Samaresh Bose Vs. Amal Mitra, AIR 1986 SC 967 , where the Court held that in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader.18. There are numerous other decisions, both from India and foreign country which mandate that `obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to the clear formulation on this issue it is not necessary for us to discuss these precedents at length. In the present case, the appellant has merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Furthermore, the statement has been made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities. Even though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of communicating certain ideas and opinions on the above- mentioned subject. In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.19. We must also respond to the claim that the appellants remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellants statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.20. "Offence" means `an act or instance of offending; `commit an illegal act and illegal means, `contrary to or forbidden by law."Offence" has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade Association Vs. Attorney General for Canada AIR 1931 PC 94 ; Thomas Dana Vs. State of Punjab AIR 1959 SC 375 ; Jawala Ram & Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246 ; and Standard Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. AIR 2006 SC 1301 ).21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522 , wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioners brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court.22. It would also be instructive to refer to a decision of the House of Lords (U.K.) inGillick Vs. West Norfolk and Wisbech Area Health Authority,(1985) 3 All ER402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects discussed in that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have been made in any given setting.23. We now turn to the question whether the appellants remarks could reasonably amount to offence of defamation as defined under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads asDefamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.Explanation 1. - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.Explanation 4.- No imputation is said to harm a persons reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.supplied)The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that `It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are missing. As mentioned earlier, the appellants statement published in `India Today (in September 2005) is a rather general endorsement of premarital sex and her remarks are not directed at any individual or even at a `company or an association or collection of persons. It is difficult to fathom how the appellants views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the remarks published in `Dhina Thanthi (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of sex. Even if we consider these remarks in their entirety, nowhere has it been suggested that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the various respondents. It is a clear case of the complainants reading in too much into the appellants remarks.25. This takes us to the question of whether the impugned complaints were made in a bona fide manner. As we have already noted, most of the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage. It may be reiterated here that in respect of the offence of defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrates Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants can be properly described as `persons aggrieved within the meaning of Section 199(1)(b) Cr.PC. As explained earlier, there was no specific legal injury caused to any of the complainants since the appellants remarks were not directed at any individual or a readily identifiable group of people. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552 , this Court observed as`person aggrieved means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. `Person aggrieved means a person who is injured or one who is adversely affected in a legal sense.We can also approvingly refer to an earlier decision of this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR 1972 SC 2609 . In that case a controversy had arisen after `The Hindu, a leading newspaper had published a report about a resolution passed by the Dravida Kazhagham, a political party, in its conference held on January 23-24, 1971. Among other issues, the resolution also included the followingshould not be made an offence for a persons wife to desire anotherHindu, in its report, gave publicity to this resolution by using the followingConference passed a resolution requesting the Government to take suitable steps to see that coveting another mans wife is not made an offence under the Indian Penalcomplaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an "aggrieved person" or not. But there is a departure from this norm in so far as the provision permits only an "aggrieved person" to move the Court in case of defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. This Court further noted that the news-item in question did not mention any individual person nor did it contain any defamatory imputation against any individual. Accordingly, it was held that the complainant was not a `person aggrieved within the meaning of Section 198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of `a company or an association or any collection of persons as such. Undoubtedly, the explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed.While deciding the case, this Court placed reliance on the judgment of the House of Lords in KnupfferVs. London Express Newspaper Ltd.(1944) 1 ALL ER495, wherein it had been held that it is an essential element of the cause of action for defamation that the words complained of should be published "of the complainant/plaintiff". Where he is not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to.In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have "a legal peg for a justifiable claim to hang on".27. Coming back to the facts of the present case, the complainants have alleged defamation in respect of imputations against the character of Tamil-speaking women, which could perhaps be viewed as a class of persons. However, we have already explained, the appellants remarks did not suggest that all women in Tamil Nadu have engaged in premarital sex. In fact her statement in `India Today did not refer to any specific individual or group at all. If we refer to one of the questions asked as part of the concerned survey, one of the answers shows that 26% of the people who responded to the same did not think that it was necessary for women to retain their virginity till the time of marriage. Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social practices. Even if it were assumed that the news-item carried in `Dhina Thanthi caused mental agony to some sections of women in Tamil Nadu, there is no prima facie case for any offence. What is interesting to note is that not all of the complainants are women, and in fact almost all the complainants are associated with a particular political party.28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the `freedom of speech and expression is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellants remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellants remarks. If the complainants vehemently disagreed with the appellants views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574 , which spell out the appropriate approach for examining the scope of `reasonable restrictions under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:-" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg.The Court further held:" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us. Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard. | 1 | 8,271 | 5,879 | ### 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:
political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellants remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellants remarks. If the complainants vehemently disagreed with the appellants views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574 , which spell out the appropriate approach for examining the scope of `reasonable restrictions under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:-" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg.The Court further held:" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us. Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.
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1
### Explanation:
political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellants remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellants remarks. If the complainants vehemently disagreed with the appellants views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574 , which spell out the appropriate approach for examining the scope of `reasonable restrictions under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:-" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a powder keg.The Court further held:" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself."30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us. Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review.32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.
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Jogdhayan Vs. Babu Ram and Others | was however presented without a certified copy of the order of the executing Court. The appellant, however, made an application for dispensing with the filing of the certified copy. The High Court while admitting the appeal passed the following order:"Admitted. Certified copy to be filed as soon as it is available .................................. "Sd/- R.S. Narula25.11.69".4. The appellant obtained the certified copy on June 3, 1970 and filed it in the High Court on June 10, 1970. The appellant filed an application on July 17, 1970 under section S of the Limitation Act for the condonation of the delay. The second appeal came up for hearing on March 25, 1971 before a single Judge. Respondent No. I raised the preliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge; asa result he dismissed the execution second appeal filed by the appellant herein. The appellant prayed for leave to appeal under Letters Patent. The prayer was also rejected.5. . Hence this appeal by special leave.6. Shri S.K. Mehta, learned counsel appearing for Respondent No. I submitted that the execution appeal filed by the appellant in - the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed alongwith the memorandum of appeal. We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of the Code of Civil Procedure, the Court has enough power to enlarge time from time to time. Section 148 provides:"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148 C.P.C. and in dismissing the appeal without going to the merit of the matter.7. Mr. Mehta drew our attention to the second proviso to subrule of Order 41, rule (1) C.P.C. as amended by Punjab, Haryana and Chandigarh. The amendment is in the following words:"Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct."This provision hardly helps him. It is not understand able, how the counsel for the appellant could file true copies, when his client had not obtained the certificate copy of the order to question.8. The next question for decision is whether the first execution A appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise. Order 20, rule 14 CPC provides:"Decree in pre-emption suits Where the Court decrees a claim to pre-emption in respect of a particular scale of property and the purchase money has not been paid into Court, the decree shall-(a) specify a day on or before which the purchase money shall be so paid, and(c) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs if any) are not so paid, the suit shall be dismissed with costs.(2) .............................................Under order 20, rule 14 CPC, the plaintiff decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions, (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court.Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court. | 1[ds]We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of theCode of Civil Procedure, the Court has enough power to enlarge time from time tothe admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court. | 1 | 1,326 | 391 | ### 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:
was however presented without a certified copy of the order of the executing Court. The appellant, however, made an application for dispensing with the filing of the certified copy. The High Court while admitting the appeal passed the following order:"Admitted. Certified copy to be filed as soon as it is available .................................. "Sd/- R.S. Narula25.11.69".4. The appellant obtained the certified copy on June 3, 1970 and filed it in the High Court on June 10, 1970. The appellant filed an application on July 17, 1970 under section S of the Limitation Act for the condonation of the delay. The second appeal came up for hearing on March 25, 1971 before a single Judge. Respondent No. I raised the preliminary objection that the appeal was barred by limitation. The objection was upheld by the learned single Judge; asa result he dismissed the execution second appeal filed by the appellant herein. The appellant prayed for leave to appeal under Letters Patent. The prayer was also rejected.5. . Hence this appeal by special leave.6. Shri S.K. Mehta, learned counsel appearing for Respondent No. I submitted that the execution appeal filed by the appellant in - the High Court was incompetent as the certified copy of the impugned order of the lower appellate Court was not filed alongwith the memorandum of appeal. We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of the Code of Civil Procedure, the Court has enough power to enlarge time from time to time. Section 148 provides:"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."The power given to the Court under Section 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion, the High Court committed an error in not adverting to, and not exercising its powers under Section 148 C.P.C. and in dismissing the appeal without going to the merit of the matter.7. Mr. Mehta drew our attention to the second proviso to subrule of Order 41, rule (1) C.P.C. as amended by Punjab, Haryana and Chandigarh. The amendment is in the following words:"Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct."This provision hardly helps him. It is not understand able, how the counsel for the appellant could file true copies, when his client had not obtained the certificate copy of the order to question.8. The next question for decision is whether the first execution A appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise. Order 20, rule 14 CPC provides:"Decree in pre-emption suits Where the Court decrees a claim to pre-emption in respect of a particular scale of property and the purchase money has not been paid into Court, the decree shall-(a) specify a day on or before which the purchase money shall be so paid, and(c) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs if any) are not so paid, the suit shall be dismissed with costs.(2) .............................................Under order 20, rule 14 CPC, the plaintiff decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions, (i) he has to deposit in Court the purchase money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court.Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148 CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court.
### Response:
1
### Explanation:
We do not find any substance in the submission for the reason, as we have already stated above, that the appellant was granted time by the High Court at t he time of the admission and was allowed to file the certified copy "as soon as it is available." It is not the contention of the respondent that the copy was not filed at all, nor it is his submission that the Court had no power to grant time to file the copy of the impugned order. As stated above, the copy was obtained on 3.6.1970 and filed in court on 10.6.1970- seven days after the copy was obtained. So he filed the petition under Section 5 of the Limitation Act. There was no reason as to why the delay could not be condoned. That apart, under Section 148 of theCode of Civil Procedure, the Court has enough power to enlarge time from time tothe admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit was . due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non- deposit could not be due to any bona fide mistake, is absolutely untenable for the reason that while the appellant has deposited in total Rs. 17, 936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise, unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under section 148CPC and accepted the delayed deposit of 25 paise, 85 was done by the original executing Court.
|
Babu Lal Vs. Sheonath Das | under S. 7-A (1) of the Act. By an order dated March 23, 1957, under S. 7-A (2) respondent No. 5 directed the tenant to vacate the accommodation by March 24, 1957. By another order dated December 2, 1957, under S. 7-A(3) respondent No. 5 directed S. O. P. S. Chowk to evict the tenant and put the allottee in occupation of the accommodation. The tenant filed a writ petition challenging the orders of respondent No. 5. The writ petition was dismissed and the tenant was relegated to a suit. A special appeal from this order filed by the tenant was also dismissed. On September 9, 1958, the tenant filed the present suit asking for a declaration that the orders passed by respondent No. 5 were without jurisdiction and for consequential reliefs. The trial Court dismissed the Suit. The appellate Court reversed this decree and decreed the suit. On second appeal, the High Court restored the decree of the trial Court and dismissed the suit. The tenant has now filed this appeal by special leave. 2. In this appeal the tenant challenges the orders passed by respondent No. 5 under sub-s. (2) of S. 7 and sub-sections (2) and (3) of S. 7-A of the Act. Section 7 (2) is in these terms :-"7. (1) (a) .......................... (b) ................................... (c) .................................. (2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant." 3. Under S. 7 (2), the District Magistrate can pass an order in respect of an accommodation which is or has fallen vacant or about to fall vacant. The accommodation must either be vacant nor about to fall vacant before he can pass the order under S. 7(2). If the accommodation is neither vacant nor about to fall vacant, when the order under S. 7 (2) is passed, the order is void and is without jurisdiction. 4. Counsel for the tenant submitted that the District Magistrate has no power to pass an order of allotment under S. 7 (2) unless the accommodation is or has fallen vacant. This submission is based on a misconception. The District Magistrate can pass an order under S. 7 (2) not only when the accommodation is or has fallen vacant but also when it is about to fall vacant. On the materials on the record there can be no doubt that the accommodation was about to fall vacant when respondent No. 5 passed the order under S. 7(2). Before passing the order, he issued notices to the landlords and the tenant. On January 5, 1957, the landlords stated before him in writing that the accommodation was about to be vacated by the tenant. On January 22, 1957, the tenant stated before him in writing that he was going to leave the accommodation in a months time. On February 12, 1957, the tenant again made a statement before him that he wanted to vacate the shop as the decree for ejectment had been passed against him. The declared intention of the tenant that he was about to vacate the accommodation coupled with the decree for ejectment show that on February 20, 1957, the accommodation was on the point of becoming vacant or was about to fall vacant. As a matter of fact in the court below the appellant did not contend that on February 20, 1957 the accommodation was not about to fall vacant. His contention was that as the accommodation had not actually fallen vacant, respondent of No. 5 had no power to pass the order under S.7 (2). 5. Counsel next submitted that even though respondent No. 5 might have powers to pass an order under S. 7 (2) when the accommodation was about to fall vacant, the and order could take effect only when the accommodation fell vacant. We cannot accept this contention. The order dated February 20, 1957 directed the landlords to let the accommodation to the allottee. Respondent No. 5 had power to pass this order. The order took effect immediately. 6. Counsel for the tenant submitted that the proceedings under S. 7-A were without jurisdiction. Now the District Magistrate can take action under S. 7-A"where an order requiring any accommodation to be let or not to let has been duly passed under sub-section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof". Counsel submitted that as the tenant was in occupation of the accommodation before the passing of the order under S. 7(2), he cannot be said to have occupied the accommodation in contravention of the order. This contention is supported by the decision in Ram Lal v. Shiv Mani Singh, 1962 All LJ 260, but we cannot agree with the broad statement in this case that the continuance after the allotment order of an occupation previous to the order cannot be an occupation in contravention of the order. It is a question of fact in each case whether a person in occupation of the accommodation since before the allotment order can be said to have occupied the accommodation in contravention of the order (see R. K. Khandelwal v. Moti Lal Chawla, AIR 1964 All 221 ). In the instant case after the allotment order was passed, the landlords agreed to accept the appellant as a tenant at enhanced rent. This letting and the continuance of occupation by the appellant under it were in direct breach of the allotment order. 7. In the circumstances, the appellant can well be said to have occupied the accommodation in contravention of the order. The respondent No. 5 had, therefore, jurisdiction to initiate proceedings under sub-section (1) of S. 7-A and to pass the orders under sub-ss. (2) and (3) of S. 7-A. The propriety of this order cannot be questioned in this suit. 8. | 0[ds]his submission is based on a misconception. The District Magistrate can pass an order under S. 7 (2) not only when the accommodation is or has fallen vacant but also when it is about to fall vacant. On the materials on the record there can be no doubt that the accommodation was about to fall vacant when respondent No. 5 passed the order under S. 7(2). Before passing the order, he issued notices to the landlords and the tenant. On January 5, 1957, the landlords stated before him in writing that the accommodation was about to be vacated by the tenant. On January 22, 1957, the tenant stated before him in writing that he was going to leave the accommodation in a months time. On February 12, 1957, the tenant again made a statement before him that he wanted to vacate the shop as the decree for ejectment had been passed against him. The declared intention of the tenant that he was about to vacate the accommodation coupled with the decree for ejectment show that on February 20, 1957, the accommodation was on the point of becoming vacant or was about to fall vacant. As a matter of fact in the court below the appellant did not contend that on February 20, 1957 the accommodation was not about to fall vacant. His contention was that as the accommodation had not actually fallen vacant, respondent of No. 5 had no power to pass the order under S.7 (2)We cannot accept this contention. The order dated February 20, 1957 directed the landlords to let the accommodation to the allottee. Respondent No. 5 had power to pass this order. The order took effect immediatelyThis contention is supported by the decision in Ram Lal v. Shiv Mani Singh, 1962 All LJ 260,but we cannot agree with the broad statement in this case that the continuance after the allotment order of an occupation previous to the order cannot be an occupation in contravention of the order. It is a question of fact in each case whether a person in occupation of the accommodation since before the allotment order can be said to have occupied the accommodation in contravention of the order (see R. K. Khandelwal v. Moti Lal Chawla, AIR 1964 All 221 ). In the instant case after the allotment order was passed, the landlords agreed to accept the appellant as a tenant at enhanced rent. This letting and the continuance of occupation by the appellant under it were in direct breach of the allotment order.In the circumstances, the appellant can well be said to have occupied the accommodation in contravention of the order. The respondent No. 5 had, therefore, jurisdiction to initiate proceedings undern (1) of S.A and to pass the orders under. (2) and (3) of S.. The propriety of this order cannot be questioned in this suit. | 0 | 1,437 | 542 | ### 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:
under S. 7-A (1) of the Act. By an order dated March 23, 1957, under S. 7-A (2) respondent No. 5 directed the tenant to vacate the accommodation by March 24, 1957. By another order dated December 2, 1957, under S. 7-A(3) respondent No. 5 directed S. O. P. S. Chowk to evict the tenant and put the allottee in occupation of the accommodation. The tenant filed a writ petition challenging the orders of respondent No. 5. The writ petition was dismissed and the tenant was relegated to a suit. A special appeal from this order filed by the tenant was also dismissed. On September 9, 1958, the tenant filed the present suit asking for a declaration that the orders passed by respondent No. 5 were without jurisdiction and for consequential reliefs. The trial Court dismissed the Suit. The appellate Court reversed this decree and decreed the suit. On second appeal, the High Court restored the decree of the trial Court and dismissed the suit. The tenant has now filed this appeal by special leave. 2. In this appeal the tenant challenges the orders passed by respondent No. 5 under sub-s. (2) of S. 7 and sub-sections (2) and (3) of S. 7-A of the Act. Section 7 (2) is in these terms :-"7. (1) (a) .......................... (b) ................................... (c) .................................. (2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant." 3. Under S. 7 (2), the District Magistrate can pass an order in respect of an accommodation which is or has fallen vacant or about to fall vacant. The accommodation must either be vacant nor about to fall vacant before he can pass the order under S. 7(2). If the accommodation is neither vacant nor about to fall vacant, when the order under S. 7 (2) is passed, the order is void and is without jurisdiction. 4. Counsel for the tenant submitted that the District Magistrate has no power to pass an order of allotment under S. 7 (2) unless the accommodation is or has fallen vacant. This submission is based on a misconception. The District Magistrate can pass an order under S. 7 (2) not only when the accommodation is or has fallen vacant but also when it is about to fall vacant. On the materials on the record there can be no doubt that the accommodation was about to fall vacant when respondent No. 5 passed the order under S. 7(2). Before passing the order, he issued notices to the landlords and the tenant. On January 5, 1957, the landlords stated before him in writing that the accommodation was about to be vacated by the tenant. On January 22, 1957, the tenant stated before him in writing that he was going to leave the accommodation in a months time. On February 12, 1957, the tenant again made a statement before him that he wanted to vacate the shop as the decree for ejectment had been passed against him. The declared intention of the tenant that he was about to vacate the accommodation coupled with the decree for ejectment show that on February 20, 1957, the accommodation was on the point of becoming vacant or was about to fall vacant. As a matter of fact in the court below the appellant did not contend that on February 20, 1957 the accommodation was not about to fall vacant. His contention was that as the accommodation had not actually fallen vacant, respondent of No. 5 had no power to pass the order under S.7 (2). 5. Counsel next submitted that even though respondent No. 5 might have powers to pass an order under S. 7 (2) when the accommodation was about to fall vacant, the and order could take effect only when the accommodation fell vacant. We cannot accept this contention. The order dated February 20, 1957 directed the landlords to let the accommodation to the allottee. Respondent No. 5 had power to pass this order. The order took effect immediately. 6. Counsel for the tenant submitted that the proceedings under S. 7-A were without jurisdiction. Now the District Magistrate can take action under S. 7-A"where an order requiring any accommodation to be let or not to let has been duly passed under sub-section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof". Counsel submitted that as the tenant was in occupation of the accommodation before the passing of the order under S. 7(2), he cannot be said to have occupied the accommodation in contravention of the order. This contention is supported by the decision in Ram Lal v. Shiv Mani Singh, 1962 All LJ 260, but we cannot agree with the broad statement in this case that the continuance after the allotment order of an occupation previous to the order cannot be an occupation in contravention of the order. It is a question of fact in each case whether a person in occupation of the accommodation since before the allotment order can be said to have occupied the accommodation in contravention of the order (see R. K. Khandelwal v. Moti Lal Chawla, AIR 1964 All 221 ). In the instant case after the allotment order was passed, the landlords agreed to accept the appellant as a tenant at enhanced rent. This letting and the continuance of occupation by the appellant under it were in direct breach of the allotment order. 7. In the circumstances, the appellant can well be said to have occupied the accommodation in contravention of the order. The respondent No. 5 had, therefore, jurisdiction to initiate proceedings under sub-section (1) of S. 7-A and to pass the orders under sub-ss. (2) and (3) of S. 7-A. The propriety of this order cannot be questioned in this suit. 8.
### Response:
0
### Explanation:
his submission is based on a misconception. The District Magistrate can pass an order under S. 7 (2) not only when the accommodation is or has fallen vacant but also when it is about to fall vacant. On the materials on the record there can be no doubt that the accommodation was about to fall vacant when respondent No. 5 passed the order under S. 7(2). Before passing the order, he issued notices to the landlords and the tenant. On January 5, 1957, the landlords stated before him in writing that the accommodation was about to be vacated by the tenant. On January 22, 1957, the tenant stated before him in writing that he was going to leave the accommodation in a months time. On February 12, 1957, the tenant again made a statement before him that he wanted to vacate the shop as the decree for ejectment had been passed against him. The declared intention of the tenant that he was about to vacate the accommodation coupled with the decree for ejectment show that on February 20, 1957, the accommodation was on the point of becoming vacant or was about to fall vacant. As a matter of fact in the court below the appellant did not contend that on February 20, 1957 the accommodation was not about to fall vacant. His contention was that as the accommodation had not actually fallen vacant, respondent of No. 5 had no power to pass the order under S.7 (2)We cannot accept this contention. The order dated February 20, 1957 directed the landlords to let the accommodation to the allottee. Respondent No. 5 had power to pass this order. The order took effect immediatelyThis contention is supported by the decision in Ram Lal v. Shiv Mani Singh, 1962 All LJ 260,but we cannot agree with the broad statement in this case that the continuance after the allotment order of an occupation previous to the order cannot be an occupation in contravention of the order. It is a question of fact in each case whether a person in occupation of the accommodation since before the allotment order can be said to have occupied the accommodation in contravention of the order (see R. K. Khandelwal v. Moti Lal Chawla, AIR 1964 All 221 ). In the instant case after the allotment order was passed, the landlords agreed to accept the appellant as a tenant at enhanced rent. This letting and the continuance of occupation by the appellant under it were in direct breach of the allotment order.In the circumstances, the appellant can well be said to have occupied the accommodation in contravention of the order. The respondent No. 5 had, therefore, jurisdiction to initiate proceedings undern (1) of S.A and to pass the orders under. (2) and (3) of S.. The propriety of this order cannot be questioned in this suit.
|
MANASH MOHAN CHATTERJEE ANR ANR Vs. Y. RATNAKAR RAO AND ORS | the same was allowed vide its order dated 29-6-2013, entitling mandatory injunction and holding that the Contempt Petitioners do get a decree of declaration of title and recovery of the possession in respect of the suit land. The respondents were permanently restrained from making any other construction on the suit land and directed to vacate the suit land and to give khash possession to the Contempt Petitioners within two months.5. Thereafter, Contempt Petitioners filed WP No. 21429(w) of 2014 before High Court seeking a writ of Mandamus against the State alleging therein that it was impossible to execute the decree passed in Title Appeal No. 235 of 2011 and to recover Possessions because of massive construction has taken place in the property by the government and also having transferred same to the Institute of Nuclear Physics.6. Learned. Single Judge vide order dated 02-06-2015 allowed the writ petition holding that properties belonging to the contempt petitioners were never acquired and the same has been taken over by the State authorities without following due process. The High Court further directed to the State Authorities to acquire the property of the contempt petitioners following the relevant provisions of law and to pass an award and make payment of compensation within period of six months.7. Aggrieved by that, State went in appeal being MAT No. 347/2016 before division bench of High Court and on 21-08-2017, Division Bench confirmed the order of the Single Judge and directed the completion of acquisition proceedings before 31-12-2017 and in default for each day respondents shall pay compensation of Rs. 50,000/- to the contempt petitioners.8. Being Aggrieved, State appealed before this Court by way of SLP(C) No. 26845 of 2017 wherein this Court vide order dated 27- 10-2017, while dismissing the SLP, inter-alia passed the following order." ......However, learned Senior counsel appearing for the State makes a request that for compliance of the order, time may be granted at least for a period of four months. As prayed, four months time is granted to comply the order." 9. It is stated by the Contempt Petitioners that on 23-02-2018, the Additional Land Acquisition Officer sent a letter stating therein that;".... we have taken necessary steps and sought approval from the concerned authority for payment of compensation by way of direct purchase policy as laid down in G.O. No. 756- LP dated 25-02-2016 and it is learnt from your letter that Sumohan Chatterjee died on 28-10- 2017, therefore you are requested to submit the succession certificate by 26-10-2018. In respect of the legal heirs of Late Sumohan Chatterjee for taking further necessary action regarding the payment of compensation. " 10. In the instant Contempt Petition, it is stated by the Contempt Petitioners that there is no question of applying any purchase policy of the state Government in the instant case as the direction of the Honble Division Bench is to acquire and complete the acquisition by making an award and to make payment of compensation.11. This Hon. Court vide its order dated 11-05-2018 issued notice returnable in four weeks in the instant contempt petition. Thereafter, matter came up on 02-07-2018, when this Courts interalia passed the following order.".......Learned Senior counsel appearing for alleged contemnor has submitted that the Additional Land Acquisition Officer has issued a letter dated 23-2-2018 addressed to the learned Advocate of the petitioners indicating therein that they have taken approval from the concerned authority for payment of compensation by way of direct purchase policy and the method of calculating the compensation amount and paying the same. Mr. Ajit Kumar Sinha, learned Senior counsel appearing for the petitioners, on the other hand, submits that he is not willing for that. However, learned Senior counsel has made a calculation sheet of compensation which was handed over to the learned Senior counsel appearing for the State in the Court today. As prayed by the learned Senior counsel appearing for the respondents, two weeks time is granted to file comprehensive affidavit in the matter. List the matter after two weeks." 12. Thereafter, matter again came up on 20-07-2018, when this Court inter-alia passed the following order."......learned counsel appearing for the State has handed over the demand draft of Rs. 7,82,77,387/- (Rupees Seven Crore Eighty Two Lakh Seventy Seven Thousand Three Hundred and Eighty Seven only) in favour of Registrar, Supreme Court of India payable at New Delhi.Let this amount be kept in an interest bearing short term fixed deposit of a Nationalised Bank.List this matter after four weeks." 13. Today, we have heard learned senior counsel for the parties at length and perused the material placed before us.14. Mr. Anand Grover, learned senior counsel appearing for the State vehemently contended and submitted that the land has already been acquired once and compensation is paid. Second time compensation is contrary to public interest. Apart from that, he contends that the State has filed a second appeal before the High Court of Calcutta contending therein that the land has been acquired and compensation is paid. The second appeal is still pending. Without adjudicating the second appeal, the money cannot be paid to the petitioners.15. On the other hand, Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the contempt petitioners submits that the other party i.e. Kolkata Metropolitan Development Authority (hereinafter referred to as KMDA) has challenged the order passed by the Additional District Judge subsequently in second appeal and thereafter, filed a special leave petition, which was withdrawn by them. State is also party to the said litigation. Now they cannot take such a plea in the contempt proceedings.16. Apart from that, it is submitted that the learned Single Judge in the Writ Petition as well as the Division Bench subsequently given categorical finding that no acquisition has taken place. It is also a matter of fact that subsequently after dismissal of the present special leave petition, even the contempt proceedings are going on. So far, State has not passed any Award in accordance with the directions given by the High Court. | 0[ds]It is also a matter of fact that subsequently after dismissal of the present special leave petition, even the contempt proceedings are going on. So far, State has not passed any Award in accordance with the directions given by the High Court. | 0 | 1,334 | 50 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the same was allowed vide its order dated 29-6-2013, entitling mandatory injunction and holding that the Contempt Petitioners do get a decree of declaration of title and recovery of the possession in respect of the suit land. The respondents were permanently restrained from making any other construction on the suit land and directed to vacate the suit land and to give khash possession to the Contempt Petitioners within two months.5. Thereafter, Contempt Petitioners filed WP No. 21429(w) of 2014 before High Court seeking a writ of Mandamus against the State alleging therein that it was impossible to execute the decree passed in Title Appeal No. 235 of 2011 and to recover Possessions because of massive construction has taken place in the property by the government and also having transferred same to the Institute of Nuclear Physics.6. Learned. Single Judge vide order dated 02-06-2015 allowed the writ petition holding that properties belonging to the contempt petitioners were never acquired and the same has been taken over by the State authorities without following due process. The High Court further directed to the State Authorities to acquire the property of the contempt petitioners following the relevant provisions of law and to pass an award and make payment of compensation within period of six months.7. Aggrieved by that, State went in appeal being MAT No. 347/2016 before division bench of High Court and on 21-08-2017, Division Bench confirmed the order of the Single Judge and directed the completion of acquisition proceedings before 31-12-2017 and in default for each day respondents shall pay compensation of Rs. 50,000/- to the contempt petitioners.8. Being Aggrieved, State appealed before this Court by way of SLP(C) No. 26845 of 2017 wherein this Court vide order dated 27- 10-2017, while dismissing the SLP, inter-alia passed the following order." ......However, learned Senior counsel appearing for the State makes a request that for compliance of the order, time may be granted at least for a period of four months. As prayed, four months time is granted to comply the order." 9. It is stated by the Contempt Petitioners that on 23-02-2018, the Additional Land Acquisition Officer sent a letter stating therein that;".... we have taken necessary steps and sought approval from the concerned authority for payment of compensation by way of direct purchase policy as laid down in G.O. No. 756- LP dated 25-02-2016 and it is learnt from your letter that Sumohan Chatterjee died on 28-10- 2017, therefore you are requested to submit the succession certificate by 26-10-2018. In respect of the legal heirs of Late Sumohan Chatterjee for taking further necessary action regarding the payment of compensation. " 10. In the instant Contempt Petition, it is stated by the Contempt Petitioners that there is no question of applying any purchase policy of the state Government in the instant case as the direction of the Honble Division Bench is to acquire and complete the acquisition by making an award and to make payment of compensation.11. This Hon. Court vide its order dated 11-05-2018 issued notice returnable in four weeks in the instant contempt petition. Thereafter, matter came up on 02-07-2018, when this Courts interalia passed the following order.".......Learned Senior counsel appearing for alleged contemnor has submitted that the Additional Land Acquisition Officer has issued a letter dated 23-2-2018 addressed to the learned Advocate of the petitioners indicating therein that they have taken approval from the concerned authority for payment of compensation by way of direct purchase policy and the method of calculating the compensation amount and paying the same. Mr. Ajit Kumar Sinha, learned Senior counsel appearing for the petitioners, on the other hand, submits that he is not willing for that. However, learned Senior counsel has made a calculation sheet of compensation which was handed over to the learned Senior counsel appearing for the State in the Court today. As prayed by the learned Senior counsel appearing for the respondents, two weeks time is granted to file comprehensive affidavit in the matter. List the matter after two weeks." 12. Thereafter, matter again came up on 20-07-2018, when this Court inter-alia passed the following order."......learned counsel appearing for the State has handed over the demand draft of Rs. 7,82,77,387/- (Rupees Seven Crore Eighty Two Lakh Seventy Seven Thousand Three Hundred and Eighty Seven only) in favour of Registrar, Supreme Court of India payable at New Delhi.Let this amount be kept in an interest bearing short term fixed deposit of a Nationalised Bank.List this matter after four weeks." 13. Today, we have heard learned senior counsel for the parties at length and perused the material placed before us.14. Mr. Anand Grover, learned senior counsel appearing for the State vehemently contended and submitted that the land has already been acquired once and compensation is paid. Second time compensation is contrary to public interest. Apart from that, he contends that the State has filed a second appeal before the High Court of Calcutta contending therein that the land has been acquired and compensation is paid. The second appeal is still pending. Without adjudicating the second appeal, the money cannot be paid to the petitioners.15. On the other hand, Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the contempt petitioners submits that the other party i.e. Kolkata Metropolitan Development Authority (hereinafter referred to as KMDA) has challenged the order passed by the Additional District Judge subsequently in second appeal and thereafter, filed a special leave petition, which was withdrawn by them. State is also party to the said litigation. Now they cannot take such a plea in the contempt proceedings.16. Apart from that, it is submitted that the learned Single Judge in the Writ Petition as well as the Division Bench subsequently given categorical finding that no acquisition has taken place. It is also a matter of fact that subsequently after dismissal of the present special leave petition, even the contempt proceedings are going on. So far, State has not passed any Award in accordance with the directions given by the High Court.
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0
### Explanation:
It is also a matter of fact that subsequently after dismissal of the present special leave petition, even the contempt proceedings are going on. So far, State has not passed any Award in accordance with the directions given by the High Court.
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Shivashankar Prasad Shah & Ors Vs. Baikunth Nath Singh & Ors | the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act.15. In Krishna Prasad v. Gauri Kumari Devi, (1962) Supp 3 SCR 564=(AIR 1962 SC 1464 ) the question that arose for decision by the Court was whether a mortgage decree-holder could proceed against the properties of the mortgagor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act. That question was answered in the negative. In the course of the judgment Gajendragadkar, J., (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claims Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the Court of ordinary civil jurisdiction." Proceeding further he observed:"It is in the light of this scheme of the Act that we must refer toSection4 (a) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation ofSection4 (d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained inSection16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued underSection3. Therefore, in construingSection4 (d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act."and again at page 578 (of SCR)=(at p. 1470 of AIR):"Having regard to the said scheme, it is difficult to confine the application ofSection4 (d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment debtor."16. Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801 (supra) - a case arising under the Act:"From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act."17. For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412 ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441 =(AIR 1961 SC 1790 ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464 ) is as explained by Kamala Sahai J., in that case. | 0[ds]Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact R. 9, O. 9, Civil Procedure Code which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai, (1890) 17 Ind Appg to the appellants as the Bakasht lands which form part of the mortgaged property had not vested in the State, the execution can proceed against those lands.Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801 (supra) - a case arising under thethe principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412 ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441 =(AIR 1961 SC 1790 ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464 ) is as explained by Kamala Sahai J., in that case.The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law - see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar, 31. Bom LR 400 = (AIR 1929 Bom 217 ), Even the dismissal for default of objections raised underSection47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution-see Bahir Das Pal v. Girish Chandra Pal, AIR 1923 Cal 287 ; Bhagwati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354 ; Jethmal v. Mst. Sakina, AIR 1961 Raj 59 ; Bishwanath Kundu v. Smt, Subala Dassi, AIR 1962 Cal 272 . We do not think that the decision in Ramnarain v. Basudeo, ILR 25 Pat 595 = (AIR 1947 Pat 298 ) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant iswe have to see whether the entire mortgaged property had vested in the State in pursuance of the notification underSection3 or only the mortgaged property minus the Bakasht lands.13. In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act. | 0 | 3,479 | 1,032 | ### 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 circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act.15. In Krishna Prasad v. Gauri Kumari Devi, (1962) Supp 3 SCR 564=(AIR 1962 SC 1464 ) the question that arose for decision by the Court was whether a mortgage decree-holder could proceed against the properties of the mortgagor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act. That question was answered in the negative. In the course of the judgment Gajendragadkar, J., (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claims Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the Court of ordinary civil jurisdiction." Proceeding further he observed:"It is in the light of this scheme of the Act that we must refer toSection4 (a) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation ofSection4 (d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained inSection16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued underSection3. Therefore, in construingSection4 (d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act."and again at page 578 (of SCR)=(at p. 1470 of AIR):"Having regard to the said scheme, it is difficult to confine the application ofSection4 (d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment debtor."16. Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801 (supra) - a case arising under the Act:"From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act."17. For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412 ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441 =(AIR 1961 SC 1790 ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464 ) is as explained by Kamala Sahai J., in that case.
### Response:
0
### Explanation:
Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact R. 9, O. 9, Civil Procedure Code which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai, (1890) 17 Ind Appg to the appellants as the Bakasht lands which form part of the mortgaged property had not vested in the State, the execution can proceed against those lands.Summarising the effect of the aforementioned decisions this it what this Court observed in Raj Kishores case, AIR 1967 SC 801 (supra) - a case arising under thethe principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.For the reasons mentioned earlier we are of the opinion that the decision of the majority of the Judges in the Full Bench decision in Sideshwar Prashad Singh v. Ram Saroop Singh, 1963 BLJR 802= (AIR 1963 Pat 412 ) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singhs case, (1962) 2 SCR 441 =(AIR 1961 SC 1790 ) supra) and Krishna Prasads case, (1962) Supp 3 SCR 564= (AIR 1962 SC 1464 ) is as explained by Kamala Sahai J., in that case.The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law - see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar, 31. Bom LR 400 = (AIR 1929 Bom 217 ), Even the dismissal for default of objections raised underSection47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution-see Bahir Das Pal v. Girish Chandra Pal, AIR 1923 Cal 287 ; Bhagwati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354 ; Jethmal v. Mst. Sakina, AIR 1961 Raj 59 ; Bishwanath Kundu v. Smt, Subala Dassi, AIR 1962 Cal 272 . We do not think that the decision in Ramnarain v. Basudeo, ILR 25 Pat 595 = (AIR 1947 Pat 298 ) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant iswe have to see whether the entire mortgaged property had vested in the State in pursuance of the notification underSection3 or only the mortgaged property minus the Bakasht lands.13. In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.14. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) a question identical to the one before us, but arising under the U. P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U. P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before bySection18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in S. 6(h) of the U. P. Act read with S. 73 of the Transfer of Property Act and follow the compensation money under the Act.
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Chairman & M.D., N.T.P.C Vs. M/S. Reshmi Constructions,Builders&Cont | as thereby waived or lost, except in so far as may be expressly conceded or decided. See, also Dismissal Without Prejudice.Similarly, in Whartons Law Lexicon the author while interpreting the term without prejudice observed as follows:The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter; so, if a defendant offers, without prejudice to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment.The rule is that nothing written or said without prejudice can be considered at the trial without the consent of both parties - not even by a Judge in determining whether or not there is good cause for depriving a successful litigant of costs - The word is also frequently used without the foregoing implications in statutes and inter partes to exclude or save transactions, act and rights from the consequences of a stated proposition and so as to mean not affecting, saving or excepting.In short, therefore, the implication of the term without prejudice means (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred." 36. The appellant has in its letter dated 20th December, 1990 has used the term without prejudice. It has explained the situation under which the amount under the No Demand Certificate had to be signed. The question may have to be considered from that angle. Furthermore, the question as to whether the respondent has waived its contractual right to receive the amount or is otherwise estoppel from pleading otherwise will itself be a fact which has to be determined by the arbitral tribunal). 37. In Halsburys Law of England, 4th Edition, Vol. 16 (Reissue) para 957 at page 844 it is stated: "On the principle that a person may not appropriate and reprobate a special species of estoppel has arisen. The principles that a person may not approbate and reprobate express two propositions:(1) That the person in question, having a choice between to courses of conduct is to be treated as having made an election from which he cannot resile.(2) That he will be regarded, in general at any rate, as having so elected unless he had taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent." 38. In American Jurisprudence, 2nd Edition, Volume 28, 1966, Page 677-680 it is stated: "Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.As a general principles, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance.This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 39. The fact situation in the present case, would lead to the conclusion that the arbitration agreement subsists because;(i) Disputes as regard final bill arose prior to its acceptance thereof in view the fact that the same was prepared by the respondent but was not agreed upon in its entirety by the appellant herein;(ii) The appellant has not pleaded that upon submission of the final bill by the respondent herein any negotiation or settlement took place as a result whereof the final bill, as prepared by the appellant, was accepted by the respondent unequivocally and without any reservation therefor;(iii) The respondent herein immediately after receiving the payment of the final bill, lodged its protest and reiterated its claims.(iv) Interpretation and/ or application of clause 52 of the agreement would constitute a dispute which would fall for consideration of the arbitrator.(v) The effect of the correspondences between the parties would have to be determined by the arbitrator, particularly as regard the claim of the respondent that the final bill was accepted by it without prejudice.(vi) The appellant never made out a case that any novation of the contract agreement took place or the contract agreement was substituted by a new agreement. Only in the event, a case of creation of new agreement is made out the question of challenging the same by the respondent would have arisen.(vii) The conduct of the appellant would show that on receipt of the notice of the respondent through its advocate dated 21.12.1991 the same was not rejected outright but existence of disputes was accepted and the matter was sought to be referred to the arbitration.(viii) Only when the clarificatory letter was issued the plea of settlement of final bill was raised.(ix) The finding of the High Court that a prima facie in the sense that there are triable issues before the Arbitrator so as to invoke the provisions of Section 20 of the Arbitration Act, 1940 cannot be said to be perverse or unreasonable so as to warrant interference in exercise of extraordinary jurisdiction under Article 136 of the Constitution of India.(x) The jurisdiction of the arbitrator under the 1940 Act although emanates from the reference, it is trite, that in a given situation the arbitrator can determine all questions of law and fact including the construction of the contract agreement. (See Pure Helium India Pvt. Ltd. vs. Oil and Natural Gas Commission reported in 2003(8) SCALE 553).(xi) The cases cited by the learned counsel for the appellant (P.K. Ramaiah and Company (supra) and Nathani Steels (supra) would show that the decisions therein were rendered having regard to the finding of fact that the contract agreement containing the arbitrator clause was substituted by another agreement. Such a question has to be considered and determined in each individual case having regard to the fact situation obtaining therein. | 0[ds]16. The issues are required to be determined having regard to the facts as which arise for consideration whether by reason of the act of the parties the old contract was substituted by a new contract. Only in the event a new contract came into being, the arbitration agreement cannot be invoked.We, however, may observe that the quotation from Russell on Arbitration may not be apt inasmuch as at the stage of reference what would be a good defence is not a matter to be taken into consideration.25. Yet again, in Nathani Steels Ltd. (supra) the disputes and differences were amicably settled by and between the parties and in that view of the matter it was held that unless and until the statement is set aside, the arbitration clause cannot be invoked. Such is not the position here.The appellant herein did not raise a question that there has been a novation of contract. The conduct of the parties as evidenced in their letters, as noticed hereinafter, clearly go to show that no only the final bill submitted by the respondent was received but another final bill was prepared with a printed format that a "No Demand Certificate" has been executed as other final bill would not be paid. The respondent herein, as noticed hereinbefore, categorically stated in its letter dated 20.12.1990 that as to under what circumstances they were compelled to sign the said printed letter. It appears from the appendix appended to the judgment of the learned Trial Judge that the said letter was filed even before the trial court. It is, therefore, not a case whether the respondents assertion of under influence or coercion" can be said to have been taken by way of an afterthought.27. Even when rights and obligations of the parties are worked out the contract does not come to an end inter alia for the purpose of determination of the disputes arising thereunder, and, thus, the arbitration agreement can be invoked. Although it may not be strictly in place but we cannot shut out eyes to the ground reality that in the cases where a contractor has made huge investment, he cannot afford not to take from the employment the amount under the bills, for various reasons which may include discharge of his liability towards the banks, financial institutions and other persons. In such a situation, the public sector undertakings would have an upper hand. They would not ordinarily release the money unless a No Demand Certificate is signed. Each case, therefore, is required to be considered on its own facts.We may, however, hasten to add that such a case has to be made out and proved before the Arbitrator for obtaining an award.The fact situation in the present case, would lead to the conclusion that the arbitration agreement subsists because;(i) Disputes as regard final bill arose prior to its acceptance thereof in view the fact that the same was prepared by the respondent but was not agreed upon in its entirety by the appellant herein;(ii) The appellant has not pleaded that upon submission of the final bill by the respondent herein any negotiation or settlement took place as a result whereof the final bill, as prepared by the appellant, was accepted by the respondent unequivocally and without any reservation therefor;(iii) The respondent herein immediately after receiving the payment of the final bill, lodged its protest and reiterated its claims.(iv) Interpretation and/ or application of clause 52 of the agreement would constitute a dispute which would fall for consideration of the arbitrator.(v) The effect of the correspondences between the parties would have to be determined by the arbitrator, particularly as regard the claim of the respondent that the final bill was accepted by it without prejudice.(vi) The appellant never made out a case that any novation of the contract agreement took place or the contract agreement was substituted by a new agreement. Only in the event, a case of creation of new agreement is made out the question of challenging the same by the respondent would have arisen.(vii) The conduct of the appellant would show that on receipt of the notice of the respondent through its advocate dated 21.12.1991 the same was not rejected outright but existence of disputes was accepted and the matter was sought to be referred to the arbitration.(viii) Only when the clarificatory letter was issued the plea of settlement of final bill was raised.(ix) The finding of the High Court that a prima facie in the sense that there are triable issues before the Arbitrator so as to invoke the provisions of Section 20 of the Arbitration Act, 1940 cannot be said to be perverse or unreasonable so as to warrant interference in exercise of extraordinary jurisdiction under Article 136 of the Constitution of India.(x) The jurisdiction of the arbitrator under the 1940 Act although emanates from the reference, it is trite, that in a given situation the arbitrator can determine all questions of law and fact including the construction of the contract agreement. (See Pure Helium India Pvt. Ltd. vs. Oil and Natural Gas Commission reported in 2003(8) SCALE 553).(xi) The cases cited by the learned counsel for the appellant (P.K. Ramaiah and Company (supra) and Nathani Steels (supra) would show that the decisions therein were rendered having regard to the finding of fact that the contract agreement containing the arbitrator clause was substituted by another agreement. Such a question has to be considered and determined in each individual case having regard to the fact situation obtaining therein. | 0 | 6,461 | 1,037 | ### 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:
as thereby waived or lost, except in so far as may be expressly conceded or decided. See, also Dismissal Without Prejudice.Similarly, in Whartons Law Lexicon the author while interpreting the term without prejudice observed as follows:The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter; so, if a defendant offers, without prejudice to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment.The rule is that nothing written or said without prejudice can be considered at the trial without the consent of both parties - not even by a Judge in determining whether or not there is good cause for depriving a successful litigant of costs - The word is also frequently used without the foregoing implications in statutes and inter partes to exclude or save transactions, act and rights from the consequences of a stated proposition and so as to mean not affecting, saving or excepting.In short, therefore, the implication of the term without prejudice means (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred." 36. The appellant has in its letter dated 20th December, 1990 has used the term without prejudice. It has explained the situation under which the amount under the No Demand Certificate had to be signed. The question may have to be considered from that angle. Furthermore, the question as to whether the respondent has waived its contractual right to receive the amount or is otherwise estoppel from pleading otherwise will itself be a fact which has to be determined by the arbitral tribunal). 37. In Halsburys Law of England, 4th Edition, Vol. 16 (Reissue) para 957 at page 844 it is stated: "On the principle that a person may not appropriate and reprobate a special species of estoppel has arisen. The principles that a person may not approbate and reprobate express two propositions:(1) That the person in question, having a choice between to courses of conduct is to be treated as having made an election from which he cannot resile.(2) That he will be regarded, in general at any rate, as having so elected unless he had taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent." 38. In American Jurisprudence, 2nd Edition, Volume 28, 1966, Page 677-680 it is stated: "Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.As a general principles, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance.This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 39. The fact situation in the present case, would lead to the conclusion that the arbitration agreement subsists because;(i) Disputes as regard final bill arose prior to its acceptance thereof in view the fact that the same was prepared by the respondent but was not agreed upon in its entirety by the appellant herein;(ii) The appellant has not pleaded that upon submission of the final bill by the respondent herein any negotiation or settlement took place as a result whereof the final bill, as prepared by the appellant, was accepted by the respondent unequivocally and without any reservation therefor;(iii) The respondent herein immediately after receiving the payment of the final bill, lodged its protest and reiterated its claims.(iv) Interpretation and/ or application of clause 52 of the agreement would constitute a dispute which would fall for consideration of the arbitrator.(v) The effect of the correspondences between the parties would have to be determined by the arbitrator, particularly as regard the claim of the respondent that the final bill was accepted by it without prejudice.(vi) The appellant never made out a case that any novation of the contract agreement took place or the contract agreement was substituted by a new agreement. Only in the event, a case of creation of new agreement is made out the question of challenging the same by the respondent would have arisen.(vii) The conduct of the appellant would show that on receipt of the notice of the respondent through its advocate dated 21.12.1991 the same was not rejected outright but existence of disputes was accepted and the matter was sought to be referred to the arbitration.(viii) Only when the clarificatory letter was issued the plea of settlement of final bill was raised.(ix) The finding of the High Court that a prima facie in the sense that there are triable issues before the Arbitrator so as to invoke the provisions of Section 20 of the Arbitration Act, 1940 cannot be said to be perverse or unreasonable so as to warrant interference in exercise of extraordinary jurisdiction under Article 136 of the Constitution of India.(x) The jurisdiction of the arbitrator under the 1940 Act although emanates from the reference, it is trite, that in a given situation the arbitrator can determine all questions of law and fact including the construction of the contract agreement. (See Pure Helium India Pvt. Ltd. vs. Oil and Natural Gas Commission reported in 2003(8) SCALE 553).(xi) The cases cited by the learned counsel for the appellant (P.K. Ramaiah and Company (supra) and Nathani Steels (supra) would show that the decisions therein were rendered having regard to the finding of fact that the contract agreement containing the arbitrator clause was substituted by another agreement. Such a question has to be considered and determined in each individual case having regard to the fact situation obtaining therein.
### Response:
0
### Explanation:
16. The issues are required to be determined having regard to the facts as which arise for consideration whether by reason of the act of the parties the old contract was substituted by a new contract. Only in the event a new contract came into being, the arbitration agreement cannot be invoked.We, however, may observe that the quotation from Russell on Arbitration may not be apt inasmuch as at the stage of reference what would be a good defence is not a matter to be taken into consideration.25. Yet again, in Nathani Steels Ltd. (supra) the disputes and differences were amicably settled by and between the parties and in that view of the matter it was held that unless and until the statement is set aside, the arbitration clause cannot be invoked. Such is not the position here.The appellant herein did not raise a question that there has been a novation of contract. The conduct of the parties as evidenced in their letters, as noticed hereinafter, clearly go to show that no only the final bill submitted by the respondent was received but another final bill was prepared with a printed format that a "No Demand Certificate" has been executed as other final bill would not be paid. The respondent herein, as noticed hereinbefore, categorically stated in its letter dated 20.12.1990 that as to under what circumstances they were compelled to sign the said printed letter. It appears from the appendix appended to the judgment of the learned Trial Judge that the said letter was filed even before the trial court. It is, therefore, not a case whether the respondents assertion of under influence or coercion" can be said to have been taken by way of an afterthought.27. Even when rights and obligations of the parties are worked out the contract does not come to an end inter alia for the purpose of determination of the disputes arising thereunder, and, thus, the arbitration agreement can be invoked. Although it may not be strictly in place but we cannot shut out eyes to the ground reality that in the cases where a contractor has made huge investment, he cannot afford not to take from the employment the amount under the bills, for various reasons which may include discharge of his liability towards the banks, financial institutions and other persons. In such a situation, the public sector undertakings would have an upper hand. They would not ordinarily release the money unless a No Demand Certificate is signed. Each case, therefore, is required to be considered on its own facts.We may, however, hasten to add that such a case has to be made out and proved before the Arbitrator for obtaining an award.The fact situation in the present case, would lead to the conclusion that the arbitration agreement subsists because;(i) Disputes as regard final bill arose prior to its acceptance thereof in view the fact that the same was prepared by the respondent but was not agreed upon in its entirety by the appellant herein;(ii) The appellant has not pleaded that upon submission of the final bill by the respondent herein any negotiation or settlement took place as a result whereof the final bill, as prepared by the appellant, was accepted by the respondent unequivocally and without any reservation therefor;(iii) The respondent herein immediately after receiving the payment of the final bill, lodged its protest and reiterated its claims.(iv) Interpretation and/ or application of clause 52 of the agreement would constitute a dispute which would fall for consideration of the arbitrator.(v) The effect of the correspondences between the parties would have to be determined by the arbitrator, particularly as regard the claim of the respondent that the final bill was accepted by it without prejudice.(vi) The appellant never made out a case that any novation of the contract agreement took place or the contract agreement was substituted by a new agreement. Only in the event, a case of creation of new agreement is made out the question of challenging the same by the respondent would have arisen.(vii) The conduct of the appellant would show that on receipt of the notice of the respondent through its advocate dated 21.12.1991 the same was not rejected outright but existence of disputes was accepted and the matter was sought to be referred to the arbitration.(viii) Only when the clarificatory letter was issued the plea of settlement of final bill was raised.(ix) The finding of the High Court that a prima facie in the sense that there are triable issues before the Arbitrator so as to invoke the provisions of Section 20 of the Arbitration Act, 1940 cannot be said to be perverse or unreasonable so as to warrant interference in exercise of extraordinary jurisdiction under Article 136 of the Constitution of India.(x) The jurisdiction of the arbitrator under the 1940 Act although emanates from the reference, it is trite, that in a given situation the arbitrator can determine all questions of law and fact including the construction of the contract agreement. (See Pure Helium India Pvt. Ltd. vs. Oil and Natural Gas Commission reported in 2003(8) SCALE 553).(xi) The cases cited by the learned counsel for the appellant (P.K. Ramaiah and Company (supra) and Nathani Steels (supra) would show that the decisions therein were rendered having regard to the finding of fact that the contract agreement containing the arbitrator clause was substituted by another agreement. Such a question has to be considered and determined in each individual case having regard to the fact situation obtaining therein.
|
Delhi Cloth & General Mills Co. Ltd Vs. The Workmen & Ors | :"The Unions agree to withdraw their disputes regarding payment of additional bonus for the years I960-61 1961-62 and 1962-63 unconditionally. Any further modification or change in the Bonus Commission formula will not affect these years."Clauses 5, 6 and 7 are not relevant.21. It is clear from the above that the agreement related entirely to the years I960-61, 196I-62, 1962-63 and 1963-64. There is no statement anywhere about the workers being bound to accept any figure of allocation with regard to the year 1964-6522. The only other document to which our attention was drawn bears the date 13th December 1965 and this also was executed by and between the same parties. The document is divided into two portions, the first being a short recital of the case and the second being the terms of settlement divided into eight paragraphs. The recitals of the case show that the bonus for the year ending 30th June 1964 was paid to the workmen of the two Textile Mills in accordance with the agreement dated 27th October 1964 between the Management and the Kapra Mazdoor Ekta Union representing the workmen and that the payment was made according to the Bonus Commission Formula as accepted and modified by the Government. Under the aforesaid agreement, it was agreed that in case any further alteration or modification in the Bonus Formula were made by the Government, the workers would be entitled to receive benefit of the same. The workers had accordingly raised a demand for additional bonus in terms of para. 3 of the Agreement, dated 27th October 1964. The Kapra Mazdoor Ekta Union and the Textile Mazdoor Sangh representing an overwhelming majority of the workmen of Delhi Cloth Mills and Swatantra Bharat Mills had moved the Conciliation Officer for settlement of this demand for additional bonus. After mutual negotiations with the help and assistance of the Conciliation Officer, the parties had agreed to settle the matter on the following terms and conditions. Then follow the terms of settlement. The first is to the effect that the workers reiterate and reaffirm the agreement dated 27th October 1964. The second clause is to the effect that the parties agree to calculate the quantum of bonus payable for the year ending 30th June 1964 on the basis of the Formula laid down under Ss. 6 and 7 of the Payment of Bonus Act, 1965, taking together the pooled profits of Delhi Cloth Mills and Swatantra Bharat Mills calculated on the basis. According to this, the total amount of bonus payable worked out to Rs. 30-25 lacs and the rate of bonus payable worked out to 10.43 per cent of the total earnings which was not based on any base year. According to Cl. 3. the company agreed to pay the additional balance amount of bonus due to the workmen at the rate of 3.10 per cent of the total earnings for the year ending 30th June 1964 within a period of three days. Clause 4 is not material. According to Cl. 5, as regards the amount of Rs. 2.90 lacs paid by the company in consideration of withdrawal of disputes for the years 1960-61, 1961-62 and 1962-63, it was agreed that the company would be entitled to adjust that amount of Rs. 2.90 lacs against the total amount of bonus payable to the workers for the year, in which the actual disbursement of such arrears, if any, might have to be made, subsequent to the year 1964-65, as a result of any award of the Court. Clause 6 runs as follows :"It is, further, agreed between the parties that the calculation of rate of bonus payable for the year 1964-65 will he made on the basis of formula laid down under Ss. 6 and 7 of the Payment of Bonus Act. This will, however, be done soon after the General Meeting of the shareholders of the Company in which the accounts for the aforesaid year will be passed by the share holders. The actual disbursement of the bonus for this year will commence after 15 days of the holding of the Annual General Meeting. In case a settlement in regard to rate of bonus is arrived at, the negotiations for it will start immediately."23. It will be noticed from the above that the entire settlement was with regard to the additional bonus for the year ending June 30, 1964 and only Cl. 6 had some relation to the bonus payable for the year 1964-65. With regard to that there really was no agreement excepting that the rate of bonus would be on the basis of the Formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. Section 6 of the Payment of Bonus Act shows what sums are to be deducted from the gross profits as prior charges for the computation of the available surplus under S. 5 of the Act. Section 7 lays down that for the purpose of Cl. (c) of S. 6 any direct tax payable by the employer for any accounting year shall, subject to the provisions mentioned, be calculated at the rates applicable to the income of the employer for that year. Clause 6, therefore, only prescribes that the parties could proceed on the basis of the formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. The last portion of Cl. 6 shows that the parties contemplated that they would be able to arrive at a settlement with regard to the rate of bonus for which negotiations were to start immediately. From this, it is impossible to spell out any agreement between the parties with respect to the bonus for the year 1964-65 or the allocation of capital and reserves of the company to the two units in calculating the bonus statement.24. In our view, therefore, the parties were not bound by any agreement with regard to issue No. 1 and the Tribunal will have to take evidence to come to a finding on that issue. | 1[ds]9. From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto.In our opinion there was enough material on the record in that case to show that the company, had been trying, for some time past to transfer its business elsewhere and the action of the appellant which followed the strike on April 27, 1959 was in fact a closure and not aThe facts of that case were very special and the decision must be limited to those special facts.In the case before us, there is no such difficulty. The third and the fourth terms of reference in the instant case are founded on the basis that there was a strike at the Delhi Cloth Mills and astrike at the Swatantra Bharat Mills and that there was adeclared by the management of the Delhi Cloth Mills on 24th February l966. On the order of reference, it was not competent to the workmen to contend before the Tribunal that there was no strike at all; equally, it was not open to the management to argue that there was nodeclared by it. The parties would be allowed by their respective statement of cases to place before the Tribunal such facts and contentions as would explain their conduct or their stand, but they could not be allowed to argue that the order of reference was wrongly worded and that the very basis of the order of reference was open to challenge. The cases discussed go to show that it is open to the parties to show that the dispute referred was not an industrial dispute at all and it is certainly open to them to bring out before the Tribunal the ramifications of the dispute. But they cannot be allowed to challenge the very basis of the issue set forth in the order of reference.On behalf of the respondents, Mr. Chari put before us four propositions which according to him the Tribunal had to consider before coming to a decision on these two issues. They were: (i) The fact that there was a recital of dispute in the order of reference did not show that the Government had come to a decision on the dispute; (ii) The order of reference only limited the Tribunals jurisdiction in that it was not competent to go beyond the heads or points of dispute; (iii) Not every recital of fact mentioned in the order of Government was irrebutable; and (iv) In order to fix the ambit of the dispute it was necessary to refer to the pleadings of theparties No exception can be taken to the first two points The correctness of the third proposition would depend on the language of the recital.In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference wasand that the true dispute was something else. Under S. l0 (4) of the Act it is not competent to the Tribunal to entertain such a question.19. In our opinion, therefore, the Tribunal had to examine issues 3 and 4 on the basis that there was a strike at the D.C.M. unit and astrike at Swatantra Bharat Mills and that there was adeclared with regard to the former as stated in the third term of reference. It was for the Tribunal to examine the evidence only on the question as to whether the strikes were justified and legal. It then had to come to its decision as to whether the workman were entitled to the wages for the period of thein the Delhi Cloth Mills and for the period of thestrike at the Swatantra Bharat Mills.We have therefore to refer to the documents to which our attention was drawn to see whether there was such an agreement. The first issue relates to the allocation of capital and reserves of the company to the two units, viz., Delhi Cloth Mills, and Swatantra Bharat Mills for calculating the bonus table for the accounting year ending 30th June 1965.It is clear from the above that the agreement related entirely to the years63 andThere is no statement anywhere about the workers being bound to accept any figure of allocation with regard to the yearIt will be noticed from the above that the entire settlement was with regard to the additional bonus for the year ending June 30, 1964 and only Cl. 6 had some relation to the bonus payable for the yearWith regard to that there really was no agreement excepting that the rate of bonus would be on the basis of the Formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. Section 6 of the Payment of Bonus Act shows what sums are to be deducted from the gross profits as prior charges for the computation of the available surplus under S. 5 of the Act. Section 7 lays down that for the purpose of Cl. (c) of S. 6 any direct tax payable by the employer for any accounting year shall, subject to the provisions mentioned, be calculated at the rates applicable to the income of the employer for that year. Clause 6, therefore, only prescribes that the parties could proceed on the basis of the formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. The last portion of Cl. 6 shows that the parties contemplated that they would be able to arrive at a settlement with regard to the rate of bonus for which negotiations were to start immediately. From this, it is impossible to spell out any agreement between the parties with respect to the bonus for the yearor the allocation of capital and reserves of the company to the two units in calculating the bonus statement.24. In our view, therefore, the parties were not bound by any agreement with regard to issue No. 1 and the Tribunal will have to take evidence to come to a finding on that issue. | 1 | 7,083 | 1,247 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
:"The Unions agree to withdraw their disputes regarding payment of additional bonus for the years I960-61 1961-62 and 1962-63 unconditionally. Any further modification or change in the Bonus Commission formula will not affect these years."Clauses 5, 6 and 7 are not relevant.21. It is clear from the above that the agreement related entirely to the years I960-61, 196I-62, 1962-63 and 1963-64. There is no statement anywhere about the workers being bound to accept any figure of allocation with regard to the year 1964-6522. The only other document to which our attention was drawn bears the date 13th December 1965 and this also was executed by and between the same parties. The document is divided into two portions, the first being a short recital of the case and the second being the terms of settlement divided into eight paragraphs. The recitals of the case show that the bonus for the year ending 30th June 1964 was paid to the workmen of the two Textile Mills in accordance with the agreement dated 27th October 1964 between the Management and the Kapra Mazdoor Ekta Union representing the workmen and that the payment was made according to the Bonus Commission Formula as accepted and modified by the Government. Under the aforesaid agreement, it was agreed that in case any further alteration or modification in the Bonus Formula were made by the Government, the workers would be entitled to receive benefit of the same. The workers had accordingly raised a demand for additional bonus in terms of para. 3 of the Agreement, dated 27th October 1964. The Kapra Mazdoor Ekta Union and the Textile Mazdoor Sangh representing an overwhelming majority of the workmen of Delhi Cloth Mills and Swatantra Bharat Mills had moved the Conciliation Officer for settlement of this demand for additional bonus. After mutual negotiations with the help and assistance of the Conciliation Officer, the parties had agreed to settle the matter on the following terms and conditions. Then follow the terms of settlement. The first is to the effect that the workers reiterate and reaffirm the agreement dated 27th October 1964. The second clause is to the effect that the parties agree to calculate the quantum of bonus payable for the year ending 30th June 1964 on the basis of the Formula laid down under Ss. 6 and 7 of the Payment of Bonus Act, 1965, taking together the pooled profits of Delhi Cloth Mills and Swatantra Bharat Mills calculated on the basis. According to this, the total amount of bonus payable worked out to Rs. 30-25 lacs and the rate of bonus payable worked out to 10.43 per cent of the total earnings which was not based on any base year. According to Cl. 3. the company agreed to pay the additional balance amount of bonus due to the workmen at the rate of 3.10 per cent of the total earnings for the year ending 30th June 1964 within a period of three days. Clause 4 is not material. According to Cl. 5, as regards the amount of Rs. 2.90 lacs paid by the company in consideration of withdrawal of disputes for the years 1960-61, 1961-62 and 1962-63, it was agreed that the company would be entitled to adjust that amount of Rs. 2.90 lacs against the total amount of bonus payable to the workers for the year, in which the actual disbursement of such arrears, if any, might have to be made, subsequent to the year 1964-65, as a result of any award of the Court. Clause 6 runs as follows :"It is, further, agreed between the parties that the calculation of rate of bonus payable for the year 1964-65 will he made on the basis of formula laid down under Ss. 6 and 7 of the Payment of Bonus Act. This will, however, be done soon after the General Meeting of the shareholders of the Company in which the accounts for the aforesaid year will be passed by the share holders. The actual disbursement of the bonus for this year will commence after 15 days of the holding of the Annual General Meeting. In case a settlement in regard to rate of bonus is arrived at, the negotiations for it will start immediately."23. It will be noticed from the above that the entire settlement was with regard to the additional bonus for the year ending June 30, 1964 and only Cl. 6 had some relation to the bonus payable for the year 1964-65. With regard to that there really was no agreement excepting that the rate of bonus would be on the basis of the Formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. Section 6 of the Payment of Bonus Act shows what sums are to be deducted from the gross profits as prior charges for the computation of the available surplus under S. 5 of the Act. Section 7 lays down that for the purpose of Cl. (c) of S. 6 any direct tax payable by the employer for any accounting year shall, subject to the provisions mentioned, be calculated at the rates applicable to the income of the employer for that year. Clause 6, therefore, only prescribes that the parties could proceed on the basis of the formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. The last portion of Cl. 6 shows that the parties contemplated that they would be able to arrive at a settlement with regard to the rate of bonus for which negotiations were to start immediately. From this, it is impossible to spell out any agreement between the parties with respect to the bonus for the year 1964-65 or the allocation of capital and reserves of the company to the two units in calculating the bonus statement.24. In our view, therefore, the parties were not bound by any agreement with regard to issue No. 1 and the Tribunal will have to take evidence to come to a finding on that issue.
### Response:
1
### Explanation:
instant case are founded on the basis that there was a strike at the Delhi Cloth Mills and astrike at the Swatantra Bharat Mills and that there was adeclared by the management of the Delhi Cloth Mills on 24th February l966. On the order of reference, it was not competent to the workmen to contend before the Tribunal that there was no strike at all; equally, it was not open to the management to argue that there was nodeclared by it. The parties would be allowed by their respective statement of cases to place before the Tribunal such facts and contentions as would explain their conduct or their stand, but they could not be allowed to argue that the order of reference was wrongly worded and that the very basis of the order of reference was open to challenge. The cases discussed go to show that it is open to the parties to show that the dispute referred was not an industrial dispute at all and it is certainly open to them to bring out before the Tribunal the ramifications of the dispute. But they cannot be allowed to challenge the very basis of the issue set forth in the order of reference.On behalf of the respondents, Mr. Chari put before us four propositions which according to him the Tribunal had to consider before coming to a decision on these two issues. They were: (i) The fact that there was a recital of dispute in the order of reference did not show that the Government had come to a decision on the dispute; (ii) The order of reference only limited the Tribunals jurisdiction in that it was not competent to go beyond the heads or points of dispute; (iii) Not every recital of fact mentioned in the order of Government was irrebutable; and (iv) In order to fix the ambit of the dispute it was necessary to refer to the pleadings of theparties No exception can be taken to the first two points The correctness of the third proposition would depend on the language of the recital.In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference wasand that the true dispute was something else. Under S. l0 (4) of the Act it is not competent to the Tribunal to entertain such a question.19. In our opinion, therefore, the Tribunal had to examine issues 3 and 4 on the basis that there was a strike at the D.C.M. unit and astrike at Swatantra Bharat Mills and that there was adeclared with regard to the former as stated in the third term of reference. It was for the Tribunal to examine the evidence only on the question as to whether the strikes were justified and legal. It then had to come to its decision as to whether the workman were entitled to the wages for the period of thein the Delhi Cloth Mills and for the period of thestrike at the Swatantra Bharat Mills.We have therefore to refer to the documents to which our attention was drawn to see whether there was such an agreement. The first issue relates to the allocation of capital and reserves of the company to the two units, viz., Delhi Cloth Mills, and Swatantra Bharat Mills for calculating the bonus table for the accounting year ending 30th June 1965.It is clear from the above that the agreement related entirely to the years63 andThere is no statement anywhere about the workers being bound to accept any figure of allocation with regard to the yearIt will be noticed from the above that the entire settlement was with regard to the additional bonus for the year ending June 30, 1964 and only Cl. 6 had some relation to the bonus payable for the yearWith regard to that there really was no agreement excepting that the rate of bonus would be on the basis of the Formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. Section 6 of the Payment of Bonus Act shows what sums are to be deducted from the gross profits as prior charges for the computation of the available surplus under S. 5 of the Act. Section 7 lays down that for the purpose of Cl. (c) of S. 6 any direct tax payable by the employer for any accounting year shall, subject to the provisions mentioned, be calculated at the rates applicable to the income of the employer for that year. Clause 6, therefore, only prescribes that the parties could proceed on the basis of the formula laid down in Ss. 6 and 7 of the Payment of Bonus Act. The last portion of Cl. 6 shows that the parties contemplated that they would be able to arrive at a settlement with regard to the rate of bonus for which negotiations were to start immediately. From this, it is impossible to spell out any agreement between the parties with respect to the bonus for the yearor the allocation of capital and reserves of the company to the two units in calculating the bonus statement.24. In our view, therefore, the parties were not bound by any agreement with regard to issue No. 1 and the Tribunal will have to take evidence to come to a finding on that issue.
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Rahimatulla Rahiman Sarguru Vs. Bapu Hari Mane and Another | Chinnappa Reddy, J. 1. Bapu Hari Mane, the respondent herein, was a tenant of the land in Survey No. 1436 of the extent of 3 acres 31 gunthas. On April 15, 1958, he purported to execute a deed of surrender in favour of the landlord, the appellant herein. On April 16, 1958, the 4 landlord applied to the Mamlatdar and on October 15, 1959, the Mamlatdar sanctioned the surrender. By an order dated June 1, 1959, the Mamlatdar directed delivery of possession of the land to the landlord. Possession of the land was accordingly purported to be delivered to the landlord on September 1, 1959. On May 10, 1965, the landlord sold the land to a third party. On May 21, 1965, the tenant filed an application under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, for a declaration that he was the tenant of the appellant of the land in question. He alleged that the landlord took from him in writing a Razinama, assuring him that his possession of the land would not be disturbed. He never gave up possession of the suit land and continued to be a tenant of the land. This application was opposed by the landlord. It was alleged on behalf of the landlord that the tenant had given the Razinama out of his own free will and that possession was also delivered on May 10, 1965, from which date he was continuously in possession. The Aval Karkun by an order dated August 25, 1965, allowed the application and declared the respondent as a tenant of the suit land. He accepted the case of the tenant that notwithstanding the purported surrender, possession of the land continued with him all through. He also accepted the evidence relating to the payment of rent by the tenant. The landlord preferred an appeal to the Special Deputy Collector who by his order dated January 22, 1966, set aside the order of the Aval Karkun and declared that the respondent was not the tenant of the land. The Special Deputy Collector was of the view that the possession of the respondent was not as a tenant but as a purchaser. He relied upon the evidence relating to the existence of an agreement between the parties for sale of the property and the payment of earnest money. The tenant preferred a revision to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948. The Tribunal set aside the order of the Special Deputy Collector and restored that of the Aval Karkun. The Tribunal held that after the surrender there was a fresh tenancy and that Bapu Mane continued in possession throughout. The Tribunal held that the Special Deputy Collector committed an error of law in holding that the possession of Bapu Mane was as a purchaser and not as a tenant when that was not the case of the landlord either in the written statement or in the evidence. The landlord, thereupon filed a writ petition in the High Court. It was dismissed in limine. The present appeal has been filed by the landlord after obtaining special leave under Article 136 of the Constitution. 2. Shri Lalit, learned counsel for the appellant submitted that the Maharashtra Revenue Tribunal acted entirely without jurisdiction in setting aside the order of the Special Deputy Collector on a reappraisal of the evidence. He submitted that the Revenue Tribunal was bound by the finding of fact arrived at by the Special Deputy Collector. 3. Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, provides for a revision to the Maharashtra Revenue Tribunal against an order of the Collector on the following grounds - (a) that the order of the Collector was contrary to law; (b) that the Collector failed to determine some material issue of law; or, (c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice. 4. The powers of revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under Section 100, Civil Procedure Code before it was amended by Act 104 of 1976. We do not have the slightest doubt that the Special Deputy Collector had acted contrary to law as the finding that the respondent was in possession not as a tenant but as a purchaser was not based either on the pleading or on the evidence of the appellant-landlord. The case of the appellant in his written statement as well as in his evidence was that he himself was in possession of the land from September 1, 1959, a case which was negatived by all the Tribunals. Shri Lalit drew our attention to the admission of the tenant in his cross-examination that there was an agreement between the parties for sale of the land and that the respondent had also paid earnest money. It is one thing to say that the tenant who was in possession of the it is quite a different thing to say that possession of the land was pursuant to an agreement of sale. The Special Deputy Collector, in our opinion misdirected himself in not appreciating the distinction. We are, therefore, unable to say that the Maharashtra Revenue Tribunal acted without jurisdiction in interfering with the order of the Special Deputy Collector. 5. | 0[ds]4. The powers of revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under Section 100, Civil Procedure Code before it was amended by Act 104 of 1976. We do not have the slightest doubt that the Special Deputy Collector had acted contrary to law as the finding that the respondent was in possession not as a tenant but as a purchaser was not based either on the pleading or on the evidence of the. The case of the appellant in his written statement as well as in his evidence was that he himself was in possession of the land from September 1, 1959, a case which was negatived by all the Tribunals. Shri Lalit drew our attention to the admission of the tenant in hisn that there was an agreement between the parties for sale of the land and that the respondent had also paid earnest money. It is one thing to say that the tenant who was in possession of the it is quite a different thing to say that possession of the land was pursuant to an agreement of sale. The Special Deputy Collector, in our opinion misdirected himself in not appreciating the distinction. We are, therefore, unable to say that the Maharashtra Revenue Tribunal acted without jurisdiction in interfering with the order of the Special Deputy Collector. | 0 | 1,005 | 263 | ### 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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Chinnappa Reddy, J. 1. Bapu Hari Mane, the respondent herein, was a tenant of the land in Survey No. 1436 of the extent of 3 acres 31 gunthas. On April 15, 1958, he purported to execute a deed of surrender in favour of the landlord, the appellant herein. On April 16, 1958, the 4 landlord applied to the Mamlatdar and on October 15, 1959, the Mamlatdar sanctioned the surrender. By an order dated June 1, 1959, the Mamlatdar directed delivery of possession of the land to the landlord. Possession of the land was accordingly purported to be delivered to the landlord on September 1, 1959. On May 10, 1965, the landlord sold the land to a third party. On May 21, 1965, the tenant filed an application under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, for a declaration that he was the tenant of the appellant of the land in question. He alleged that the landlord took from him in writing a Razinama, assuring him that his possession of the land would not be disturbed. He never gave up possession of the suit land and continued to be a tenant of the land. This application was opposed by the landlord. It was alleged on behalf of the landlord that the tenant had given the Razinama out of his own free will and that possession was also delivered on May 10, 1965, from which date he was continuously in possession. The Aval Karkun by an order dated August 25, 1965, allowed the application and declared the respondent as a tenant of the suit land. He accepted the case of the tenant that notwithstanding the purported surrender, possession of the land continued with him all through. He also accepted the evidence relating to the payment of rent by the tenant. The landlord preferred an appeal to the Special Deputy Collector who by his order dated January 22, 1966, set aside the order of the Aval Karkun and declared that the respondent was not the tenant of the land. The Special Deputy Collector was of the view that the possession of the respondent was not as a tenant but as a purchaser. He relied upon the evidence relating to the existence of an agreement between the parties for sale of the property and the payment of earnest money. The tenant preferred a revision to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948. The Tribunal set aside the order of the Special Deputy Collector and restored that of the Aval Karkun. The Tribunal held that after the surrender there was a fresh tenancy and that Bapu Mane continued in possession throughout. The Tribunal held that the Special Deputy Collector committed an error of law in holding that the possession of Bapu Mane was as a purchaser and not as a tenant when that was not the case of the landlord either in the written statement or in the evidence. The landlord, thereupon filed a writ petition in the High Court. It was dismissed in limine. The present appeal has been filed by the landlord after obtaining special leave under Article 136 of the Constitution. 2. Shri Lalit, learned counsel for the appellant submitted that the Maharashtra Revenue Tribunal acted entirely without jurisdiction in setting aside the order of the Special Deputy Collector on a reappraisal of the evidence. He submitted that the Revenue Tribunal was bound by the finding of fact arrived at by the Special Deputy Collector. 3. Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, provides for a revision to the Maharashtra Revenue Tribunal against an order of the Collector on the following grounds - (a) that the order of the Collector was contrary to law; (b) that the Collector failed to determine some material issue of law; or, (c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice. 4. The powers of revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under Section 100, Civil Procedure Code before it was amended by Act 104 of 1976. We do not have the slightest doubt that the Special Deputy Collector had acted contrary to law as the finding that the respondent was in possession not as a tenant but as a purchaser was not based either on the pleading or on the evidence of the appellant-landlord. The case of the appellant in his written statement as well as in his evidence was that he himself was in possession of the land from September 1, 1959, a case which was negatived by all the Tribunals. Shri Lalit drew our attention to the admission of the tenant in his cross-examination that there was an agreement between the parties for sale of the land and that the respondent had also paid earnest money. It is one thing to say that the tenant who was in possession of the it is quite a different thing to say that possession of the land was pursuant to an agreement of sale. The Special Deputy Collector, in our opinion misdirected himself in not appreciating the distinction. We are, therefore, unable to say that the Maharashtra Revenue Tribunal acted without jurisdiction in interfering with the order of the Special Deputy Collector. 5.
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0
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4. The powers of revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under Section 100, Civil Procedure Code before it was amended by Act 104 of 1976. We do not have the slightest doubt that the Special Deputy Collector had acted contrary to law as the finding that the respondent was in possession not as a tenant but as a purchaser was not based either on the pleading or on the evidence of the. The case of the appellant in his written statement as well as in his evidence was that he himself was in possession of the land from September 1, 1959, a case which was negatived by all the Tribunals. Shri Lalit drew our attention to the admission of the tenant in hisn that there was an agreement between the parties for sale of the land and that the respondent had also paid earnest money. It is one thing to say that the tenant who was in possession of the it is quite a different thing to say that possession of the land was pursuant to an agreement of sale. The Special Deputy Collector, in our opinion misdirected himself in not appreciating the distinction. We are, therefore, unable to say that the Maharashtra Revenue Tribunal acted without jurisdiction in interfering with the order of the Special Deputy Collector.
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DEBANANDA TAMULI Vs. SMTI KAKUMONI KATAKY | because husband and wife are staying separately, an inference regarding desertion on the wifes part cannot be drawn. Her submission is that as a case for grant of divorce on any of the grounds specified in sub-section (1) of Section 13 of HM Act is not made out, this Court should not exercise its jurisdiction under Article 142 of the Constitution of India for dissolving the marriage. She urged that issue whether such a power can be exercised under Article 142 to dissolve a marriage on account of a long separation has been referred to the consideration of the Constitution Bench. 6. The learned counsel for the appellant urged that if this Court is not satisfied that grounds of divorce as pleaded by the appellant are made out, this is a fit case to put an end to the prolonged agony of the parties by dissolving the marriage by exercising the plenary powers of this Court under Article 142 of the Constitution. 7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus: 13. Divorce.— (1) ………… [Substituted by Act 68 of 1976 (w e f 27-05-1976)] [Explanation.—In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 8. The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence. 9. Now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship. 10. The perusal of the respondents evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately. 11. Merely because on account of the death of the appellants mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home. 12. Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the Courts on the issue of cruelty. 13. Earlier, when this Court made an effort for bringing about an amicable settlement, the appellant had offered to pay a lump sum amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent. | 1[ds]The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976.9. Now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship.10. The perusal of the respondents evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately.11. Merely because on account of the death of the appellants mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home.12. Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the Courts on the issue of cruelty.13. Earlier, when this Court made an effort for bringing about an amicable settlement, the appellant had offered to pay a lump sum amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent. | 1 | 1,801 | 717 | ### 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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because husband and wife are staying separately, an inference regarding desertion on the wifes part cannot be drawn. Her submission is that as a case for grant of divorce on any of the grounds specified in sub-section (1) of Section 13 of HM Act is not made out, this Court should not exercise its jurisdiction under Article 142 of the Constitution of India for dissolving the marriage. She urged that issue whether such a power can be exercised under Article 142 to dissolve a marriage on account of a long separation has been referred to the consideration of the Constitution Bench. 6. The learned counsel for the appellant urged that if this Court is not satisfied that grounds of divorce as pleaded by the appellant are made out, this is a fit case to put an end to the prolonged agony of the parties by dissolving the marriage by exercising the plenary powers of this Court under Article 142 of the Constitution. 7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus: 13. Divorce.— (1) ………… [Substituted by Act 68 of 1976 (w e f 27-05-1976)] [Explanation.—In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 8. The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence. 9. Now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship. 10. The perusal of the respondents evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately. 11. Merely because on account of the death of the appellants mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home. 12. Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the Courts on the issue of cruelty. 13. Earlier, when this Court made an effort for bringing about an amicable settlement, the appellant had offered to pay a lump sum amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent.
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1
### Explanation:
The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976.9. Now, coming to the facts of the case, there is no dispute that the marriage between the parties was solemnized on 17th June 2009 and that they stayed together only till 30th June 2009. The petition for divorce was filed on 9th September 2011. As per clause (ib) of sub-section (1) of Section 13 of HM Act, the desertion must be for a continuous period of not less than two years immediately preceding the institution of the petition. In her affidavit in lieu of examination-in-chief filed on 24th June 2015, the respondent stated that after she became aware of the serious illness of the appellants mother, she came to Tezpur on 19th December 2009. She stayed with her sister-in-law. According to the respondent, on 20th December 2009, the appellant told her to leave Tezpur. Therefore, she left Tezpur. After she was informed about the death of the appellants mother, she came back to Tezpur and visited the appellants house on 21st December 2019, and left on the next day. In the affidavit in lieu of examination-in-chief, it is not even the case made out by the respondent that she came to Tezpur intending to resume the matrimonial relationship.10. The perusal of the respondents evidence does not disclose any effort made by her to resume the matrimonial relationship. She has not filed a petition for restitution of conjugal rights. As can be seen from the evidence on record, the appellant is carrying on business at Tezpur. The respondent is working as a Lecturer in University Law College at Gauhati. There is no dispute that from 1st July 2009 till date, they are staying separately.11. Merely because on account of the death of the appellants mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. She has not stated that she came to her matrimonial home on 21st December 2009 with the intention to resume cohabitation. The intention on the part of the respondent to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home.12. Thus, in our considered view, the ground of desertion under clause (ib) of sub-section (1) of Section 13 of HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the Courts on the issue of cruelty.13. Earlier, when this Court made an effort for bringing about an amicable settlement, the appellant had offered to pay a lump sum amount of Rs.10,00,000/- (Rupees ten lakhs) to the respondent.
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MADHUKAR NIVRUTTI JAGTAP Vs. PRAMILABAI CHANDULAL PARANDEKAR (DEAD) THR. LRS | performance of a contract, the plaintiff may also claim compensation for its breach, [either in addition to, or in substitution of] (The expression either in addition to, or in substitution of was substituted by the expression in addition to by Act No.18 of 2018), such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.—The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section. 22. Power to grant relief for possession, partition, refund of earnest money, etc.— (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21. 16.3. We may refer to some of the relevant factors having bearing on the question of appropriate relief in this matter. First, the agreements in question were executed way back on 20.09.1965 and 28.04.1966. Secondly, the plaintiffs had paid an amount of Rs. 6,000/- as on 28.04.1966 against the sale consideration of Rs 22,951/- when the supplementary agreement was executed. Thirdly, though the plaintiffs alleged delivery of possession of the land in question to them, the evidence on record shows that vendors and thereafter, the subsequent purchasers remained in effective possession thereof. Fourthly, the High Court has taken note of the fact that as on the date of its decision (01.08.2007), the subsequent purchasers were in possession of the land in question for about 40 years. Fifthly, the High Court has found that the land in question carried much higher valuation at the time of passing of the judgment in second appeal and hence, enhanced the sale consideration to Rs. 10,000/- per acre. Sixthly, the plaintiffs, even while seeking specific performance, consciously prayed for the alternative reliefs of recovery of amount paid by them with interest and compensation to the tune of Rs 15,000/-. Seventhly, the plaintiff No. 3 had categorically deposed before the Court as PW1 that he was not entitled to the land in question for being not an agriculturist and he had relinquished his rights in favour of the plaintiff Nos. 1 & 2. Eighthly, the plaintiff No. 1 had expired during the pendency of suit and the plaintiff No. 2 had expired during the pendency of this appeal; though the heir and legal representative of the said plaintiff Nos. 1 & 2 is on record as plaintiff No. 4 (respondent No. 2 herein). Ninthly, the plaintiff No. 2, while deposing as PW2 had stated that in case specific performance was not granted, she may be granted alternative relief and compensation with interest. 17. In view of the above, on the point as to whether the decree passed by the High Court is justified or any other form of relief shall meet the ends of justice, we are of the view that instead of specific performance, awarding of monetary compensation to the respondent No. 2 shall meet the ends of justice. In this regard, we may observe that the appellants themselves have filed a so-called valuation report suggesting that the market value of unirrigated land was Rs. 70,000/- per hectare whereas that of the irrigated land was Rs. 1,40,000/- per hectare. The fact also remains that the appellants have been enjoying the land in question for a long length of time. Further, it gets reiterated that the predecessors of respondent No. 2 made payment of the sum of Rs. 6,000/- to the vendors in the years 1965-1966; and the plaintiffs had claimed alternative relief of recovery of the said amount together with interest as also of compensation. Taking all the relevant factors into account, we are of the view that awarding a lump sum of Rs. 15,00,000/- (Rupees fifteen lakh) to the respondent No. 2 as compensation in lieu of specific performance and in lieu of any other claim qua the land in question shall meet the ends of justice. CONCLUSION | 1[ds]12. As regards the question concerning the nature of transaction under the agreements in question, as noticed, the Trial Court and the First Appellate Court held that such agreements had been towards security and not for sale. The High Court has, however, disagreed and has held that such findings by the subordinate Courts suffered from perversity and the documents in question were not towards security for any loan transaction; neither the documents say so nor there was any evidence on record to hold that these agreements were executed by way of security for a loan transaction12.1. We have minutely examined the translated copies of the said agreements dated 20.09.1965 and 28.04.1966, as placed before us for perusal. In the initial agreement dated 20.09.1965, after mentioning the area, survey number and boundaries of the land in question, the vendors had stated as under:-he land accordingly within the boundaries, including stones, earth , well, trees, shrubs, etc14. The third question as regards the sale transactions in favour of the present appellants (the subsequent purchasers) need not detain us longer, except to correct an error on the part of High Court where it is observed that such sale deeds are to be treated as illegalThe expense to be incurred for sale-deed are to borne by you. The sale deed is to be executed by us and to be taken by you. This agreement is accordingly executed, for execution of sale deed. All our heirs shall sign the sale deed. The encumbrances shall be extinguished or Havala shall be given and the said amounts shall be deducted at the time of execution of sale deed and thus the land would be free from any charge. Out of the land, there is crop of groundnut and Toor. After same would be reaped, actual possession would be delivered at the time of sale deed by the end of November of 1965. The remaining whole land would be actually delivered to you by completing the sale transaction. Accordingly, subject to fulfilling the abovementioned conditions, the sale transaction would be completed within limit prescribed. If anybody would commit breach of conditions he will take action and expenditure shall be borne by him. The earnest amount of Rs. 3500 Rs. Three thousand and five hundred) is receivedThis Sathekhat given in writing on 20.09.1965. Dastur Bhagwa-n Vaman Palaskar resident of Solapur. The sa-le deed of the transactionsNote: The sale deed of the dealings (property) shall be executed in your name or in the names of other persons suggested by youThe sale deed would be executed –in your name or in the names others suggested by. The earnest amount of earnest of Rs. 3500 received. No complaintThis Sathekhat dt. 20.09.1965. Dastur Bhagwan Vaman Palaskar, resident of Solapur12.1.1. As noticed, another payment of Rs. 2,000/- was made by the plaintiffs to the defendant No. 1 and an endorsement for adjustment of such payment against the sale price was made on this very document on 24.11.1965 as follows:-I have purchased the house building and also purchased she-buffalos. For that, I have received Rs. 2000 in cash from you. That amount should be deducted being paid. The remaining amount of Rs. 17451 would be received from you and as per the conditions of the Sathekhat, the transaction of sale would be completed. Sd/-. Date :24.11.196512.1.2. In the supplementary agreement dated 28.04.1966, the vendors acknowledged that they had received Rs. 6,000/- from the plaintiffs under the agreement dated 20.09.1965; and also stated that they had delivered possession of a part of the land in question on 14.11.1965 and that they had delivered the possession of entire land to the vendees in part performance. The vendors also stated that there was a charge of approximately Rs. 5,000/- on the land in question and, therefore, after deducting in all a sum of Rs. 11,000/-, the vendees shall pay the remaining amount of Rs. 11,961/- and the sale deed would be executed in their favour12.2. There had not been even a remote suggestion in the documents in question that there was any loan or borrowing transaction between the parties and the said documents were being executing towards security. On the contrary, the recitals and stipulations in the said agreements had only been in affirmation of the agreement for sale and of the receipt of part payment from time to time against the sale consideration. Of course, defendant No. 1, while deposing as DW1 attempted to suggest that he had approached the plaintiff No. 3 seeking loan to the tune of Rs. 5000-5500/- through a broker; and, at the instance of the plaintiff No. 3, executed the document in question as security while taking loan at the interest rate of 1 per cent per month. This defendant also admitted having obtained another sum of Rs. 2,000/- from the plaintiff No. 1 and having put an endorsement on the document in question. He, however, denied having received any other amount or having delivered possession of the suit property. The evidence on the part of the defendants in this case remains rather vague and sketchy; and it is difficult to accept the oral assertions of defendant No. 1 as against the recitals in the agreements12.3. It is also noticed that the subordinate Courts proceeded to doubt if the transaction was at all intended to be of sale while questioning as to why the parties fixed the consideration in odd figures i.e., Rs. 22,951/-; and while observing that when as per the documents, the land was being sold @ Rs. 450/- per acre, the total consideration for the land in question would come to Rs. 22,938.75 and not Rs. 22,951/-. The Trial Court also raised doubts on the suggestion of the plaintiffs that possession of the land in question was handed over to them. The First Appellate Court even observed that as against the sale consideration, only a paltry amount was paid in advance and questioned as to why the supplementary agreement was executed after serving of notice. On the other hand, the High Court minutely examined the evidence on record and observed that there was not even a whisper about the loan transaction; and that as per the endorsement made on 24.11.1965, another amount of Rs. 2,000/- was received by the defendant Nos. 1 to 3. As regards the supplementary agreement dated 28.04.1966, the High Court again found that there was no whisper about any loan transaction or any security for such a transaction and the document was clearly executed as being the supplementary agreement for sale while even referring to the encumbrances of Rs. 5,000/-, which were to be discharged. The High Court observed that by no stretch of imagination these two agreements could be termed as and by way of security for a loan12.4. Having examined the matter in its totality, we have no hesitation in upholding the findings of the High Court that have been returned after due consideration of the material on record and with reference to the law applicable to the case. It is plain and obvious that the Trial Court and the First Appellate Court proceeded on entirely irrelevant and rather baseless considerations while failing to consider that such findings on the nature of transaction evidenced by the agreements in question could not have been rendered on surmises and conjectures12.4.1. As to whether the possession of the land in question was delivered to the plaintiffs or not, could not have been taken as a factor decisive as regards nature of transaction. Moreover, execution of the supplementary agreement after notice dated 05.04.1966 and after receiving further an amount of Rs. 500/- by the defendant Nos. 1 to 3 could only show re- affirmation of the intention of the parties towards the sale transaction. Significantly, in the supplementary agreement, the defendants not only acknowledged the receipt of part consideration to the tune of Rs. 6,000/- but further agreed for adjustment of Rs. 5,000/- towards encumbrances and, therefore, agreed to receive remaining Rs. 11,921/- at the time of execution of the sale deed. In our view, looking to the dealings of the parties, this circumstance about execution of the supplementary agreement only strengthens the case of the plaintiffs rather than operating against them12.4.2. The other observations of the subordinate Courts as regards quantum of consideration are difficult to be appreciated. Such hair-splitting exercise by the Trial Court, that on the agreed rate, sale consideration ought to have been Rs. 22,938.75 and as to why the parties agreed for Rs. 22,951/-, had been entirely baseless, rather unwarranted. The observation of the Trial Court as to why the sale consideration was in odd figures is itself of such oddity that any finding on that basis could only meet with disapproval. Rounding up of the amount of consideration and addition of one rupee in the last is not unknown to such transactions. In fact, quite contrary to what was observed by the Trial Court, the figure of sale consideration rather fortifies the deduction that the intention of the parties had only been towards the transaction of sale. In the ultimate analysis, we are satisfied that the High Court has rightly disapproved the baseless findings of the subordinate Courts and has rightly held that the agreements in question were executed for the sale of suit property. Thus, the first question is answered in favour of the plaintiffs13. When the agreements in question were for the sale of suit property, the plaintiffs were entitled to take up the action seeking specific performance. However, in order to succeed in their claim, the plaintiffs were required to aver and prove that they were always ready and willing to perform their part of the contract. As noticed, the Trial Court chose not to answer this question in view of its finding on the nature of transaction. The First Appellate Court though adverted to this question but answered the same against the plaintiffs, essentially for the reasons that they had failed to prove if before the stipulated date of execution of sale document, they were ready and willing to get the sale deed executed and there was no explanation as to why supplementary agreement was got executed. On this question, again, the High Court examined the record with reference to the law applicable and disapproved the finding of the First Appellate Court while observing that when as per the first agreement, the sale deed was to be executed by 23.03.1966, there was no occasion for any party to call upon the other for performance before that date. The High Court also found that the plaintiffs issued notice on 05.04.1966, calling upon defendants Nos. 1 to 3 to execute the sale deed and, obviously, fresh negotiations were held thereafter and hence, the supplementary agreement was executed. The High Court found the approach of the Appellate Court erroneous and held that the plaintiffs had proved their readiness and willingness to perform their part of the contract13.2. The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963 (Its forerunner being the Specific Relief Act, 1877), the plaintiff must be found standing with the contract and the plaintiffs conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular. In view of the contentions urged, we have scanned through the record to examine if the finding of the High Court in this regard calls for any interference13.3. It is noticed that plaintiffs pleaded in paragraphs 6 and 7 of the plaint that they were ready to get the sale deed executed as per the conditions in the agreement for sale and also stated that they served the notice, then supplementary agreement was executed; and then, on many occasions, they asked the defendant to execute the sale deed. The defendant No. 1 in his written statement merely stated a bald denial that such averments were false and were not agreeable to the defendants. In fact, the entire emphasis of the written statement had been on the assertion that the agreement in question was not for sale and was obtained by the plaintiffs towards security against the amount borrowed by the defendant No. 1. (This plea of the defendants as regards nature of transaction stands rejected for what has been discussed in paragraphs 12 and its sub-paragraphs hereinbefore). The plea of the plaintiffs as regards their readiness to perform the contract as per its conditions did not meet with categorical denial from the defendants. This apart, and as noticed, even at the time of entering into the agreement, the plaintiffs made payment of a sum of Rs. 3,500/- against the sale consideration of Rs. 22,951/-. Moreover, and much before the stipulated date of execution of sale deed, they made another payment of Rs. 2,000/- against the sale consideration. When the sale deed was not executed by 23.03.1966, the plaintiffs served notice on 05.04.1966. The vendors thereafter executed the supplementary agreement and the plaintiffs made payment of yet another sum of Rs. 500/- while it was also agreed by the vendors that the property carried encumbrance to the tune of Rs. 5,000/-, which was to be adjusted against the sale consideration. Therefore, the plaintiffs were left to make payment of about half of the sale consideration. The recitals in the supplementary agreement even suggested about the vendors having delivered possession of the property in question. The plaintiffs have alleged that they lost possession later on. Though the factum of delivery of possession is disputed by the defendants but such a dispute does not carry any adverse impact on the rights of the plaintiffs to seek specific performance13.4. The admission of plaintiff No. 3 that she was not possessed of sufficient funds cannot be read in isolation and it cannot be concluded that she was not possessed of sufficient means to pay the remaining sale consideration. Her statement is required to be visualised in the backdrop of the fact that her husband, plaintiff No. 1, had expired and she had succeeded to his estate. Her statement, with reference to her understanding of the matter, could only be interpreted to mean that at the given moment, she was not off-hand in possession of the money to make payment but such an expression in her statement cannot lead to the conclusion that making payment of the remaining sale consideration was beyond her capacity or that she was not willing to perform her part of the contract. In the ultimate analysis, we are satisfied that the question of readiness and willingness on the part of the plaintiffs was approached by the First Appellate Court from an altogether wrong angle and was decided against the plaintiffs on irrelevant considerations13.5. So far the period between the year 1966 to the year 1968 is concerned, when the plaintiffs had the limitation of three years for filing the suit for specific performance, it cannot be said that during the aforesaid period, the plaintiffs were required to show overt act by them in furtherance of the agreement in question. The principles stated in the decisions in Azhar Sultana, Veerayee Ammal and Pushparani S. Sundaram (supra), as relied upon by the learned counsel for the appellants, are not of any doubt or debate but each of the said cases had proceeded on its own facts. We may also observe that in the case of Azhar Sultana, the Court found that as against the agreement dated 04.12.1978, the suit for specific performance was filed on 07.12.1981, after the property was sold on 31.10.1981; and that the plaintiff failed to show that she was not having notice of the subsequent sale. However, in the said case, the Court directed monetary payment to the tune of twice the amount advanced by the plaintiff. In Veerayee Ammal, this Court pointed out that the expression reasonable time for performance on the part of plaintiff would depend on the circumstances of the case, including the terms of contract. In Pushparani S. Sundaram, the basic requirements of Section 16 of the Act of 1963 were reiterated. In contrast to what is suggested on behalf of the appellants, we may point out that recently, in the case of R Lakshmikantham v. Devaraji: Civil Appeal No. 2420 of 2018, decided on 10.07.2019, this Court has again explained that when the suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff….In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff - See Mademsetty Satyanarayana v. G.Yelloji Rao and Others AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:-(7) Mr. Lakshamaihan cited a long catena of English decisions to define the scope of a Courts discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems- English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises13.6. In the present case too, when the plaintiffs had the limitation of three years for filing the suit and have indeed filed the suit well within limitation; and looking to the overall circumstances of the case, no aspect of delay operates against them13.7. Having examined the matter in its totality and in the light of applicable principles, we are satisfied that the given set of facts and circumstances of this case lead only to the conclusion that the plaintiffs have shown their readiness and willingness to perform their part of the contract and there does not operate any personal bar against their claim for specific performance. Therefore, the second question is also answered in favour of the plaintiffs14. The third question as regards the sale transactions in favour of the present appellants (the subsequent purchasers) need not detain us longer, except to correct an error on the part of High Court where it is observed that such sale deeds are to be treated as illegal14.1. The suit in question was filed on 26.08.1968. So far the sale transaction in favour of the defendant Nos. 4 & 5 (the appellant Nos. 1 & 2 herein), in relation to 25 acres of land out of the suit property, is concerned, the same was effected by way a sale deed registered only on 10.07.1978 i.e., nearly 10 years after filing of the suit. So far the sale transaction in favour of the defendant No. 6 (the appellant No. 3 herein), in relation to other 25 acres of land out of the suit property, is concerned, though it is suggested that there had been an agreement (dated 08.05.1968) in his favour before filing of the suit but then, admittedly, the sale transaction was effected by way of a sale deed registered only on 18.09.1968, that had also been after filing of the suit. The suggestion about want of knowledge of the subsequent purchasers about the transaction of the vendors with the plaintiffs and about the pendency of the suit has been considered and rejected by the High Court and even by the subordinate Court after due appreciation of evidence on record; and we are unable to find any infirmity in these findings. Both the sale transactions in favour of the present appellants, purporting to transfer the suit property in part, having been effected after filing of the suit, are directly hit by the doctrine of lis pendens, as embodied in Section 52 of the Transfer of Property Act, 188214.2. In the case of Guruswamy Nada (supra), this Court has held as under: -13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh (supra), as relied upon by the High Court, the subsequent purchasers sought to come on record as defendants and in that context, this Court referred to Section 52 of the T.P. Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens. The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee, i.e., the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit. In the case of A. Nawab John (supra), this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the following:-18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court14.4. Hence, the effect of Section 52 ibid., for the purpose of the present case would only be that the said sale transactions in favour of the appellants shall have no adverse effect on the rights of the plaintiffs and shall remain subject to the final outcome of the suit in question. However, the High Court, while holding that the said transactions were hit by lis pendens, has proceeded to observe further that the sale deeds so made in favour of the present appellants were illegal. These further observations by the High Court cannot be approved for the reasons foregoing15. For what has been discussed hereinabove, the basic point for determination, i.e., as to whether the High Court was justified in entertaining the second appeal stands answered in the affirmative because, as noticed, the findings of the subordinate Courts on the nature of transaction and as regards readiness and willingness of the plaintiffs, which are of material bearing on the final determination, suffered from perversity and were based on irrelevant considerations. The second appeal before the High Court, obviously, involved substantial questions of law and the High Court cannot be faulted in entertaining the second appeal and in deciding the questions in favour of the plaintiffs. However, the observations of the High Court as regards operation of doctrine of lis pendens are partly incorrect and stand modified as above16.1. It is noticed that the High Court though proceeded to mould the relief in the manner that specific performance was granted on enhanced sale consideration and it was also directed that if the plaintiffs fail to make payment within two months, the present appellants (subsequent purchasers) would make payment of same amount to the plaintiffs so as to confirm their ownership over the suit land. However, in regard to this crucial aspect of the matter, it appears that the High Court overlooked the other relevant provisions of the Act of 1963 and omitted to examine if the alternative mode of relief would meet the ends of justice16.2. In our view, after it was found that granting the decree for specific performance in the very terms of the agreement/s in question may not be appropriate because of myriad factors, the matter ought to have been examined with reference to the stand of the parties and the provisions of Sections 21 and 22 of the Act of 196316.3. We may refer to some of the relevant factors having bearing on the question of appropriate relief in this matter. First, the agreements in question were executed way back on 20.09.1965 and 28.04.1966. Secondly, the plaintiffs had paid an amount of Rs. 6,000/- as on 28.04.1966 against the sale consideration of Rs 22,951/- when the supplementary agreement was executed. Thirdly, though the plaintiffs alleged delivery of possession of the land in question to them, the evidence on record shows that vendors and thereafter, the subsequent purchasers remained in effective possession thereof. Fourthly, the High Court has taken note of the fact that as on the date of its decision (01.08.2007), the subsequent purchasers were in possession of the land in question for about 40 years. Fifthly, the High Court has found that the land in question carried much higher valuation at the time of passing of the judgment in second appeal and hence, enhanced the sale consideration to Rs. 10,000/- per acre. Sixthly, the plaintiffs, even while seeking specific performance, consciously prayed for the alternative reliefs of recovery of amount paid by them with interest and compensation to the tune of Rs 15,000/-. Seventhly, the plaintiff No. 3 had categorically deposed before the Court as PW1 that he was not entitled to the land in question for being not an agriculturist and he had relinquished his rights in favour of the plaintiff Nos. 1 & 2. Eighthly, the plaintiff No. 1 had expired during the pendency of suit and the plaintiff No. 2 had expired during the pendency of this appeal; though the heir and legal representative of the said plaintiff Nos. 1 & 2 is on record as plaintiff No. 4 (respondent No. 2 herein). Ninthly, the plaintiff No. 2, while deposing as PW2 had stated that in case specific performance was not granted, she may be granted alternative relief and compensation with interest17. In view of the above, on the point as to whether the decree passed by the High Court is justified or any other form of relief shall meet the ends of justice, we are of the view that instead of specific performance, awarding of monetary compensation to the respondent No. 2 shall meet the ends of justice. In this regard, we may observe that the appellants themselves have filed a so-called valuation report suggesting that the market value of unirrigated land was Rs. 70,000/- per hectare whereas that of the irrigated land was Rs. 1,40,000/- per hectare. The fact also remains that the appellants have been enjoying the land in question for a long length of time. Further, it gets reiterated that the predecessors of respondent No. 2 made payment of the sum of Rs. 6,000/- to the vendors in the years 1965-1966; and the plaintiffs had claimed alternative relief of recovery of the said amount together with interest as also of compensation. | 1 | 13,458 | 5,311 | ### Instruction:
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performance of a contract, the plaintiff may also claim compensation for its breach, [either in addition to, or in substitution of] (The expression either in addition to, or in substitution of was substituted by the expression in addition to by Act No.18 of 2018), such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.—The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section. 22. Power to grant relief for possession, partition, refund of earnest money, etc.— (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21. 16.3. We may refer to some of the relevant factors having bearing on the question of appropriate relief in this matter. First, the agreements in question were executed way back on 20.09.1965 and 28.04.1966. Secondly, the plaintiffs had paid an amount of Rs. 6,000/- as on 28.04.1966 against the sale consideration of Rs 22,951/- when the supplementary agreement was executed. Thirdly, though the plaintiffs alleged delivery of possession of the land in question to them, the evidence on record shows that vendors and thereafter, the subsequent purchasers remained in effective possession thereof. Fourthly, the High Court has taken note of the fact that as on the date of its decision (01.08.2007), the subsequent purchasers were in possession of the land in question for about 40 years. Fifthly, the High Court has found that the land in question carried much higher valuation at the time of passing of the judgment in second appeal and hence, enhanced the sale consideration to Rs. 10,000/- per acre. Sixthly, the plaintiffs, even while seeking specific performance, consciously prayed for the alternative reliefs of recovery of amount paid by them with interest and compensation to the tune of Rs 15,000/-. Seventhly, the plaintiff No. 3 had categorically deposed before the Court as PW1 that he was not entitled to the land in question for being not an agriculturist and he had relinquished his rights in favour of the plaintiff Nos. 1 & 2. Eighthly, the plaintiff No. 1 had expired during the pendency of suit and the plaintiff No. 2 had expired during the pendency of this appeal; though the heir and legal representative of the said plaintiff Nos. 1 & 2 is on record as plaintiff No. 4 (respondent No. 2 herein). Ninthly, the plaintiff No. 2, while deposing as PW2 had stated that in case specific performance was not granted, she may be granted alternative relief and compensation with interest. 17. In view of the above, on the point as to whether the decree passed by the High Court is justified or any other form of relief shall meet the ends of justice, we are of the view that instead of specific performance, awarding of monetary compensation to the respondent No. 2 shall meet the ends of justice. In this regard, we may observe that the appellants themselves have filed a so-called valuation report suggesting that the market value of unirrigated land was Rs. 70,000/- per hectare whereas that of the irrigated land was Rs. 1,40,000/- per hectare. The fact also remains that the appellants have been enjoying the land in question for a long length of time. Further, it gets reiterated that the predecessors of respondent No. 2 made payment of the sum of Rs. 6,000/- to the vendors in the years 1965-1966; and the plaintiffs had claimed alternative relief of recovery of the said amount together with interest as also of compensation. Taking all the relevant factors into account, we are of the view that awarding a lump sum of Rs. 15,00,000/- (Rupees fifteen lakh) to the respondent No. 2 as compensation in lieu of specific performance and in lieu of any other claim qua the land in question shall meet the ends of justice. CONCLUSION
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1
### Explanation:
the suit. In the case of A. Nawab John (supra), this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the following:-18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court14.4. Hence, the effect of Section 52 ibid., for the purpose of the present case would only be that the said sale transactions in favour of the appellants shall have no adverse effect on the rights of the plaintiffs and shall remain subject to the final outcome of the suit in question. However, the High Court, while holding that the said transactions were hit by lis pendens, has proceeded to observe further that the sale deeds so made in favour of the present appellants were illegal. These further observations by the High Court cannot be approved for the reasons foregoing15. For what has been discussed hereinabove, the basic point for determination, i.e., as to whether the High Court was justified in entertaining the second appeal stands answered in the affirmative because, as noticed, the findings of the subordinate Courts on the nature of transaction and as regards readiness and willingness of the plaintiffs, which are of material bearing on the final determination, suffered from perversity and were based on irrelevant considerations. The second appeal before the High Court, obviously, involved substantial questions of law and the High Court cannot be faulted in entertaining the second appeal and in deciding the questions in favour of the plaintiffs. However, the observations of the High Court as regards operation of doctrine of lis pendens are partly incorrect and stand modified as above16.1. It is noticed that the High Court though proceeded to mould the relief in the manner that specific performance was granted on enhanced sale consideration and it was also directed that if the plaintiffs fail to make payment within two months, the present appellants (subsequent purchasers) would make payment of same amount to the plaintiffs so as to confirm their ownership over the suit land. However, in regard to this crucial aspect of the matter, it appears that the High Court overlooked the other relevant provisions of the Act of 1963 and omitted to examine if the alternative mode of relief would meet the ends of justice16.2. In our view, after it was found that granting the decree for specific performance in the very terms of the agreement/s in question may not be appropriate because of myriad factors, the matter ought to have been examined with reference to the stand of the parties and the provisions of Sections 21 and 22 of the Act of 196316.3. We may refer to some of the relevant factors having bearing on the question of appropriate relief in this matter. First, the agreements in question were executed way back on 20.09.1965 and 28.04.1966. Secondly, the plaintiffs had paid an amount of Rs. 6,000/- as on 28.04.1966 against the sale consideration of Rs 22,951/- when the supplementary agreement was executed. Thirdly, though the plaintiffs alleged delivery of possession of the land in question to them, the evidence on record shows that vendors and thereafter, the subsequent purchasers remained in effective possession thereof. Fourthly, the High Court has taken note of the fact that as on the date of its decision (01.08.2007), the subsequent purchasers were in possession of the land in question for about 40 years. Fifthly, the High Court has found that the land in question carried much higher valuation at the time of passing of the judgment in second appeal and hence, enhanced the sale consideration to Rs. 10,000/- per acre. Sixthly, the plaintiffs, even while seeking specific performance, consciously prayed for the alternative reliefs of recovery of amount paid by them with interest and compensation to the tune of Rs 15,000/-. Seventhly, the plaintiff No. 3 had categorically deposed before the Court as PW1 that he was not entitled to the land in question for being not an agriculturist and he had relinquished his rights in favour of the plaintiff Nos. 1 & 2. Eighthly, the plaintiff No. 1 had expired during the pendency of suit and the plaintiff No. 2 had expired during the pendency of this appeal; though the heir and legal representative of the said plaintiff Nos. 1 & 2 is on record as plaintiff No. 4 (respondent No. 2 herein). Ninthly, the plaintiff No. 2, while deposing as PW2 had stated that in case specific performance was not granted, she may be granted alternative relief and compensation with interest17. In view of the above, on the point as to whether the decree passed by the High Court is justified or any other form of relief shall meet the ends of justice, we are of the view that instead of specific performance, awarding of monetary compensation to the respondent No. 2 shall meet the ends of justice. In this regard, we may observe that the appellants themselves have filed a so-called valuation report suggesting that the market value of unirrigated land was Rs. 70,000/- per hectare whereas that of the irrigated land was Rs. 1,40,000/- per hectare. The fact also remains that the appellants have been enjoying the land in question for a long length of time. Further, it gets reiterated that the predecessors of respondent No. 2 made payment of the sum of Rs. 6,000/- to the vendors in the years 1965-1966; and the plaintiffs had claimed alternative relief of recovery of the said amount together with interest as also of compensation.
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Gulraj Singh Vs. Mota Singh | brothers or brothers sons of the vendor or the vendors;THIRDLY, in the fathers brothers or fathers brothers sons of the vendor or vendors;FOURTHLY, in the other co-sharersFIFTHLY, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly-FIRST, in the sons or daughters or sons sons or daughters sons of the vendors;SECONDLY, in the brothers or brothers sons of the vendors;THIRDLY, in the fathers brothers or fathers brothers sons of the vendors;FOURTHLY, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.(2) Notwithstanding anything contained in sub-section (1)-(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest,-(i) if the sale is by such female, in her brother or brothers son;(ii) if the sale is by the son or daughter of such female, in the mothers brothers or the mothers brothers sons of the vendor or vendors;(b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest.-FIRST, in the son or daughter of such female;SECONDLY, in the husbands brother or husbands brothers son of such female".The submission of learned Counsel virtually amounts to this that in order to construe the words used in S. 15 one should travel beyond the enactment and ascertain the class of persons who are entitled under the Hindu succession Act to succeed as the heirs of the intestate vendor. Even a cursory examination would show that this construction is untenable and that the framers of the Act did not proceed on any such theory. Take, for instance, the case where a female succeeds to property through her father or brother dealt with in S. 15 (2) (a) of the Pre-emption Act. Her heir under the Hindu succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or, daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide S. 15 (1) and (2)).The devolution provided by S. 15 (2) (a) (i) of the Pre-emption Act is different and confers the right to Pre-empt on her brother or her brothers son. The theory, therefore, that we should resort to the line of heirs as in an intestate succession under the Hindu succession Act or, for the matter of that, to any other system of common Law or statute applicable to the vendor is obviously untenable. Pursuing this line of reasoning a little, it was not disputed that if the female vendor were a Christian by religion, only her legitimate issue would be denoted by these words. As it is common ground that the statutory right of pre-emption conferred by S. 15 is as much applicable to a Christian owner of property as to a Hindu, it would be seen that the construction of the words of this statute of general application would be made to depend on the religion to which the vendor belonged, and in fact would vary with any change made by statute in the law of intestate succession as applicable to different communities. The position that would arise on a conversion of the vendor to a different faith, with a different personal law as to succession would bring out in bold relief the unsustainability of the submission has on the peculiarities of the personal law as to intestate succession applicable to the vendor.4. We have, therefore, to ascertain whether by the expression son or daughter only the legitimate issue of such female is comprehended or whether the words are wide enough to include illegitimate children also. That the normal rule of construction of the words "child, "son" or "daughter" occurring in a statute would include only legitimate children i.e., born in wedlock, is too elementary, to require authority. No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and S. 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a goods illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy. Section 15 with which we are concerned contains no express provision and the context, so far as it goes, is not capable of lending any support to such a construction. In the first place, the words "son or daughter" occur more than once in that Section. It was fairly conceded by Mr. Bishan Narain that where the son or daughter of a male vendor is referred to as in S. 15 (1), the words mean only the legitimate issue of the vendor. If so, it cannot be that in the case of a female vendor the words could have a different connotation. Even taking the case of a female vendor herself, there is a reference in S. 15(2) (a) (i) to the brothers son of such vendor. It could hardly be open to argument that a brothers illegitimate son is comprehended within those words. The matter appears to us to be too clear for argument that when S. 15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate son and a legitimate daughter of the female vendor. | 0[ds]The submission of learned Counsel virtually amounts to this that in order to construe the words used in S. 15 one should travel beyond the enactment and ascertain the class of persons who are entitled under the Hindu succession Act to succeed as the heirs of the intestate vendor. Even a cursory examination would show that this construction is untenable and that the framers of the Act did not proceed on any such theory. Take, for instance, the case where a female succeeds to property through her father or brother dealt with in S. 15 (2) (a) of the Pre-emption Act. Her heir under the Hindu succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or, daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide S. 15 (1) and (2)).The devolution provided by S. 15 (2) (a) (i) of the Pre-emption Act is different and confers the right to Pre-empt on her brother or her brothers son. The theory, therefore, that we should resort to the line of heirs as in an intestate succession under the Hindu succession Act or, for the matter of that, to any other system of common Law or statute applicable to the vendor is obviously untenable. Pursuing this line of reasoning a little, it was not disputed that if the female vendor were a Christian by religion, only her legitimate issue would be denoted by these words. As it is common ground that the statutory right of pre-emption conferred by S. 15 is as much applicable to a Christian owner of property as to a Hindu, it would be seen that the construction of the words of this statute of general application would be made to depend on the religion to which the vendor belonged, and in fact would vary with any change made by statute in the law of intestate succession as applicable to different communities. The position that would arise on a conversion of the vendor to a different faith, with a different personal law as to succession would bring out in bold relief the unsustainability of the submission has on the peculiarities of the personal law as to intestate succession applicable to thethe normal rule of construction of the words "child, "son" or "daughter" occurring in a statute would include only legitimate children i.e., born in wedlock, is too elementary, to require authority. No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and S. 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a goods illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy. Section 15 with which we are concerned contains no express provision and the context, so far as it goes, is not capable of lending any support to such a construction. In the first place, the words "son or daughter" occur more than once in that Section. It was fairly conceded by Mr. Bishan Narain that where the son or daughter of a male vendor is referred to as in S. 15 (1), the words mean only the legitimate issue of the vendor. If so, it cannot be that in the case of a female vendor the words could have a different connotation. Even taking the case of a female vendor herself, there is a reference in S. 15(2) (a) (i) to the brothers son of such vendor. It could hardly be open to argument that a brothers illegitimate son is comprehended within those words. The matter appears to us to be too clear for argument that when S. 15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate son and a legitimate daughter of the female vendor. | 0 | 1,709 | 784 | ### 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:
brothers or brothers sons of the vendor or the vendors;THIRDLY, in the fathers brothers or fathers brothers sons of the vendor or vendors;FOURTHLY, in the other co-sharersFIFTHLY, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly-FIRST, in the sons or daughters or sons sons or daughters sons of the vendors;SECONDLY, in the brothers or brothers sons of the vendors;THIRDLY, in the fathers brothers or fathers brothers sons of the vendors;FOURTHLY, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.(2) Notwithstanding anything contained in sub-section (1)-(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest,-(i) if the sale is by such female, in her brother or brothers son;(ii) if the sale is by the son or daughter of such female, in the mothers brothers or the mothers brothers sons of the vendor or vendors;(b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest.-FIRST, in the son or daughter of such female;SECONDLY, in the husbands brother or husbands brothers son of such female".The submission of learned Counsel virtually amounts to this that in order to construe the words used in S. 15 one should travel beyond the enactment and ascertain the class of persons who are entitled under the Hindu succession Act to succeed as the heirs of the intestate vendor. Even a cursory examination would show that this construction is untenable and that the framers of the Act did not proceed on any such theory. Take, for instance, the case where a female succeeds to property through her father or brother dealt with in S. 15 (2) (a) of the Pre-emption Act. Her heir under the Hindu succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or, daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide S. 15 (1) and (2)).The devolution provided by S. 15 (2) (a) (i) of the Pre-emption Act is different and confers the right to Pre-empt on her brother or her brothers son. The theory, therefore, that we should resort to the line of heirs as in an intestate succession under the Hindu succession Act or, for the matter of that, to any other system of common Law or statute applicable to the vendor is obviously untenable. Pursuing this line of reasoning a little, it was not disputed that if the female vendor were a Christian by religion, only her legitimate issue would be denoted by these words. As it is common ground that the statutory right of pre-emption conferred by S. 15 is as much applicable to a Christian owner of property as to a Hindu, it would be seen that the construction of the words of this statute of general application would be made to depend on the religion to which the vendor belonged, and in fact would vary with any change made by statute in the law of intestate succession as applicable to different communities. The position that would arise on a conversion of the vendor to a different faith, with a different personal law as to succession would bring out in bold relief the unsustainability of the submission has on the peculiarities of the personal law as to intestate succession applicable to the vendor.4. We have, therefore, to ascertain whether by the expression son or daughter only the legitimate issue of such female is comprehended or whether the words are wide enough to include illegitimate children also. That the normal rule of construction of the words "child, "son" or "daughter" occurring in a statute would include only legitimate children i.e., born in wedlock, is too elementary, to require authority. No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and S. 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a goods illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy. Section 15 with which we are concerned contains no express provision and the context, so far as it goes, is not capable of lending any support to such a construction. In the first place, the words "son or daughter" occur more than once in that Section. It was fairly conceded by Mr. Bishan Narain that where the son or daughter of a male vendor is referred to as in S. 15 (1), the words mean only the legitimate issue of the vendor. If so, it cannot be that in the case of a female vendor the words could have a different connotation. Even taking the case of a female vendor herself, there is a reference in S. 15(2) (a) (i) to the brothers son of such vendor. It could hardly be open to argument that a brothers illegitimate son is comprehended within those words. The matter appears to us to be too clear for argument that when S. 15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate son and a legitimate daughter of the female vendor.
### Response:
0
### Explanation:
The submission of learned Counsel virtually amounts to this that in order to construe the words used in S. 15 one should travel beyond the enactment and ascertain the class of persons who are entitled under the Hindu succession Act to succeed as the heirs of the intestate vendor. Even a cursory examination would show that this construction is untenable and that the framers of the Act did not proceed on any such theory. Take, for instance, the case where a female succeeds to property through her father or brother dealt with in S. 15 (2) (a) of the Pre-emption Act. Her heir under the Hindu succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or, daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide S. 15 (1) and (2)).The devolution provided by S. 15 (2) (a) (i) of the Pre-emption Act is different and confers the right to Pre-empt on her brother or her brothers son. The theory, therefore, that we should resort to the line of heirs as in an intestate succession under the Hindu succession Act or, for the matter of that, to any other system of common Law or statute applicable to the vendor is obviously untenable. Pursuing this line of reasoning a little, it was not disputed that if the female vendor were a Christian by religion, only her legitimate issue would be denoted by these words. As it is common ground that the statutory right of pre-emption conferred by S. 15 is as much applicable to a Christian owner of property as to a Hindu, it would be seen that the construction of the words of this statute of general application would be made to depend on the religion to which the vendor belonged, and in fact would vary with any change made by statute in the law of intestate succession as applicable to different communities. The position that would arise on a conversion of the vendor to a different faith, with a different personal law as to succession would bring out in bold relief the unsustainability of the submission has on the peculiarities of the personal law as to intestate succession applicable to thethe normal rule of construction of the words "child, "son" or "daughter" occurring in a statute would include only legitimate children i.e., born in wedlock, is too elementary, to require authority. No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and S. 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a goods illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy. Section 15 with which we are concerned contains no express provision and the context, so far as it goes, is not capable of lending any support to such a construction. In the first place, the words "son or daughter" occur more than once in that Section. It was fairly conceded by Mr. Bishan Narain that where the son or daughter of a male vendor is referred to as in S. 15 (1), the words mean only the legitimate issue of the vendor. If so, it cannot be that in the case of a female vendor the words could have a different connotation. Even taking the case of a female vendor herself, there is a reference in S. 15(2) (a) (i) to the brothers son of such vendor. It could hardly be open to argument that a brothers illegitimate son is comprehended within those words. The matter appears to us to be too clear for argument that when S. 15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate son and a legitimate daughter of the female vendor.
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New India Assurance Co.Ltd Vs. Parakh Foods Ltd | By this order we propose to dispose of the aforesaid two appeals. Civil Appeal No. 6892 of 2008 is filed by the New India Assurance Co. Ltd. as the appellant, whereas Civil Appeal No. 879 of 2009 is filed by M/s. Cargil India Pvt. Ltd. as a cross appeal. Since the facts and the issues involved in the two appeals are similar, we propose to dispose of both the appeals by this common judgment and order. The appeals are filed against the judgment and order passed by the National Consumer Disputes Redressal Commission, New Delhi (for short, `the National Commission) in Original Petition No. 146 of 2003, whereby the National Commission came to a definite conclusion that the loss suffered by the respondent (M/s. Cargil India Pvt. Ltd.) had occurred on account of fire causing damage to the soya bean stock and, therefore, as per terms of the policy, the respondent is entitled to receive Rs. 1,70,72,876/- which is the amount of loss assessed by the surveyor by report dated 29.10.2002 along with the interest @ 9% per annum from 1.1.2003 till the date of payment. The National Commission also directed for payment of cost of Rs. 25,000/-. Being aggrieved by the aforesaid judgment and order, the appellant has filed this appeal whereas the respondent has filed the appeal seeking enhancement of the compensation awarded by the National Commission. Counsel appearing for the appellant has drawn our attention to the entire facts of the case in support of his contention that the soya bean stock was damaged before the fire had taken place and in that view of the matter the stipulation in the agreement between the parties does not entitle the respondent to receive any damage or compensation for the loss or damage caused to the goods. In support of the said contention the counsel also relied upon the endorsement in the agreement between the parties, which reads as follows: "In consideration of the payment by the insured to the company of additional premium of Rs. .......the company agrees notwithstanding what is stated in the printed exclusions of this policy to the contrary that the insurance by (items ....) of this policy shall extend to the property insured caused by its own fermentation, natural heating or spontaneous combustion. N.B. - The expression `by fire only in the endorsement above must not be omitted under any circumstances." Our attention was also drawn to the policy, which is the subject matter of the claim in the present case. There is an exclusion clause in the said policy which provides that the aforesaid insurance policy would not cover loss or damage to property caused by its own fermentation, natural heating or spontaneous combustion or by its undergoing any heating or drying process. However, the respondent herein paid an extra premium of Rs. 25,000/- due to which the exclusion clause was relaxed. In other words, because of the payment of the aforesaid extra premium, the exclusion clause as stated hereinbefore also became a part of the contract between the parties and, therefore, the said exclusion clause would not be treated as excluded terms of contract but would be treated as an inclusive clause of the contract between the parties. At the instance of the counsel appearing for the parties, we have also gone through the findings recorded by the National Commission. The National Commission on appreciation of the entire records has come to a definite finding that there was loss to the respondent on account of fire causing damage to the soya bean stock and, therefore, in terms of the stipulation in the contract, the respondent is entitled to the compensation, which was awarded by the National Commission. We have considered the evidence on record and we have no reason to take a different view than what is taken by the National Commission. Even when we examine the submission of the counsel of the appellant to the effect that there was no fire at the time when the soya bean stock was damaged, even then in terms of the Full Bench decision of the National Commission, the appellant would be liable to pay the loss or damage in terms of the endorsement thereof whereby it was provided that the policy would extend to include loss or damage even to the property insured, caused by spontaneous combustion. In other words, even if there was no loss or damage by fire even then, for any loss or damage caused to the property insured due to spontaneous combustion, the respondent would be entitled to claim damages to the extent it was found to be so damaged. The aforesaid Full Bench decision of the National Commission although was challenged in this Court was not interfered with in the decision in Civil Appeal No. 873 of 2005 titled Oriental Insurance Co. Ltd. v. M/s. Murli Agro Products Ltd. disposed of on 13.03.2008. It could not be disputed before us that the present case would also be covered by the aforesaid decision, so far aforesaid alternative arrangement is concerned. The NCL has given a report in terms of the request of the surveyor assessing damage of Rs. 1,70,72,876/-, which is the amount awarded. In terms thereof, we do not find any ground to interfere with the order passed by the National Commission. So far as the counter claim is concerned, we have heard learned counsel appearing for the parties. On going through records, we find no reason to enhance the compensation, which is fixed by the National Commission. The aforesaid amount, which is awarded as damages to the respondent, is based on the loss assessed by the surveyor. That being the position, no case for any enhancement is made out by the respondent. | 0[ds]Our attention was also drawn to the policy, which is the subject matter of the claim in the present case. There is an exclusion clause in the said policy which provides that the aforesaid insurance policy would not cover loss or damage to property caused by its own fermentation, natural heating or spontaneous combustion or by its undergoing any heating or drying process. However, the respondent herein paid an extra premium of Rs. 25,000/due to which the exclusion clause was relaxed. In other words, because of the payment of the aforesaid extra premium, the exclusion clause as stated hereinbefore also became a part of the contract between the parties and, therefore, the said exclusion clause would not be treated as excluded terms of contract but would be treated as an inclusive clause of the contract between the partiesAt the instance of the counsel appearing for the parties, we have also gone through the findings recorded by the National Commission. The National Commission on appreciation of the entire records has come to a definite finding that there was loss to the respondent on account of fire causing damage to the soya bean stock and, therefore, in terms of the stipulation in the contract, the respondent is entitled to the compensation, which was awarded by the National Commission. We have considered the evidence on record and we have no reason to take a different view than what is taken by the National CommissionEven when we examine the submission of the counsel of the appellant to the effect that there was no fire at the time when the soya bean stock was damaged, even then in terms of the Full Bench decision of the National Commission, the appellant would be liable to pay the loss or damage in terms of the endorsement thereof whereby it was provided that the policy would extend to include loss or damage even to the property insured, caused by spontaneous combustion | 0 | 1,046 | 348 | ### 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:
By this order we propose to dispose of the aforesaid two appeals. Civil Appeal No. 6892 of 2008 is filed by the New India Assurance Co. Ltd. as the appellant, whereas Civil Appeal No. 879 of 2009 is filed by M/s. Cargil India Pvt. Ltd. as a cross appeal. Since the facts and the issues involved in the two appeals are similar, we propose to dispose of both the appeals by this common judgment and order. The appeals are filed against the judgment and order passed by the National Consumer Disputes Redressal Commission, New Delhi (for short, `the National Commission) in Original Petition No. 146 of 2003, whereby the National Commission came to a definite conclusion that the loss suffered by the respondent (M/s. Cargil India Pvt. Ltd.) had occurred on account of fire causing damage to the soya bean stock and, therefore, as per terms of the policy, the respondent is entitled to receive Rs. 1,70,72,876/- which is the amount of loss assessed by the surveyor by report dated 29.10.2002 along with the interest @ 9% per annum from 1.1.2003 till the date of payment. The National Commission also directed for payment of cost of Rs. 25,000/-. Being aggrieved by the aforesaid judgment and order, the appellant has filed this appeal whereas the respondent has filed the appeal seeking enhancement of the compensation awarded by the National Commission. Counsel appearing for the appellant has drawn our attention to the entire facts of the case in support of his contention that the soya bean stock was damaged before the fire had taken place and in that view of the matter the stipulation in the agreement between the parties does not entitle the respondent to receive any damage or compensation for the loss or damage caused to the goods. In support of the said contention the counsel also relied upon the endorsement in the agreement between the parties, which reads as follows: "In consideration of the payment by the insured to the company of additional premium of Rs. .......the company agrees notwithstanding what is stated in the printed exclusions of this policy to the contrary that the insurance by (items ....) of this policy shall extend to the property insured caused by its own fermentation, natural heating or spontaneous combustion. N.B. - The expression `by fire only in the endorsement above must not be omitted under any circumstances." Our attention was also drawn to the policy, which is the subject matter of the claim in the present case. There is an exclusion clause in the said policy which provides that the aforesaid insurance policy would not cover loss or damage to property caused by its own fermentation, natural heating or spontaneous combustion or by its undergoing any heating or drying process. However, the respondent herein paid an extra premium of Rs. 25,000/- due to which the exclusion clause was relaxed. In other words, because of the payment of the aforesaid extra premium, the exclusion clause as stated hereinbefore also became a part of the contract between the parties and, therefore, the said exclusion clause would not be treated as excluded terms of contract but would be treated as an inclusive clause of the contract between the parties. At the instance of the counsel appearing for the parties, we have also gone through the findings recorded by the National Commission. The National Commission on appreciation of the entire records has come to a definite finding that there was loss to the respondent on account of fire causing damage to the soya bean stock and, therefore, in terms of the stipulation in the contract, the respondent is entitled to the compensation, which was awarded by the National Commission. We have considered the evidence on record and we have no reason to take a different view than what is taken by the National Commission. Even when we examine the submission of the counsel of the appellant to the effect that there was no fire at the time when the soya bean stock was damaged, even then in terms of the Full Bench decision of the National Commission, the appellant would be liable to pay the loss or damage in terms of the endorsement thereof whereby it was provided that the policy would extend to include loss or damage even to the property insured, caused by spontaneous combustion. In other words, even if there was no loss or damage by fire even then, for any loss or damage caused to the property insured due to spontaneous combustion, the respondent would be entitled to claim damages to the extent it was found to be so damaged. The aforesaid Full Bench decision of the National Commission although was challenged in this Court was not interfered with in the decision in Civil Appeal No. 873 of 2005 titled Oriental Insurance Co. Ltd. v. M/s. Murli Agro Products Ltd. disposed of on 13.03.2008. It could not be disputed before us that the present case would also be covered by the aforesaid decision, so far aforesaid alternative arrangement is concerned. The NCL has given a report in terms of the request of the surveyor assessing damage of Rs. 1,70,72,876/-, which is the amount awarded. In terms thereof, we do not find any ground to interfere with the order passed by the National Commission. So far as the counter claim is concerned, we have heard learned counsel appearing for the parties. On going through records, we find no reason to enhance the compensation, which is fixed by the National Commission. The aforesaid amount, which is awarded as damages to the respondent, is based on the loss assessed by the surveyor. That being the position, no case for any enhancement is made out by the respondent.
### Response:
0
### Explanation:
Our attention was also drawn to the policy, which is the subject matter of the claim in the present case. There is an exclusion clause in the said policy which provides that the aforesaid insurance policy would not cover loss or damage to property caused by its own fermentation, natural heating or spontaneous combustion or by its undergoing any heating or drying process. However, the respondent herein paid an extra premium of Rs. 25,000/due to which the exclusion clause was relaxed. In other words, because of the payment of the aforesaid extra premium, the exclusion clause as stated hereinbefore also became a part of the contract between the parties and, therefore, the said exclusion clause would not be treated as excluded terms of contract but would be treated as an inclusive clause of the contract between the partiesAt the instance of the counsel appearing for the parties, we have also gone through the findings recorded by the National Commission. The National Commission on appreciation of the entire records has come to a definite finding that there was loss to the respondent on account of fire causing damage to the soya bean stock and, therefore, in terms of the stipulation in the contract, the respondent is entitled to the compensation, which was awarded by the National Commission. We have considered the evidence on record and we have no reason to take a different view than what is taken by the National CommissionEven when we examine the submission of the counsel of the appellant to the effect that there was no fire at the time when the soya bean stock was damaged, even then in terms of the Full Bench decision of the National Commission, the appellant would be liable to pay the loss or damage in terms of the endorsement thereof whereby it was provided that the policy would extend to include loss or damage even to the property insured, caused by spontaneous combustion
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Surendra K. Kambli & Another Vs. Bhandari Co-Op.Bank Limited & Others | 22.9 Now it needs to be seen if the Reserve Bank has come to form any such opinion in the present case and therefore, is within its authority to not grant any further time to the First Respondent despite appointment of a Board of Administrators for six months. The impugned order of the Reserve Bank dated 11 November 2011 notes the parameters such as Net Worth, CRAR, Deposit Erosion and Net Profit / Loss of the First Respondent as disclosed in the inspection on 31 March 2009, 31 March 2010 and 31 March 2011. Secondly, it notes the various deficiencies / irregularities revealed in the inspection report of 31 March 2011. In particular, it takes into account (a) that the erosion in the value of assets has not only wiped out the entire owned funds but the deposits have been eroded to the extent of 25.6% of total deposits, (b) that net NPAs had sharply increased from 26.6% as on 31 March 2010 to 42.3% as on 31 March 2011, (c) that the recoveries of NPA were not satisfactory, (d) that there were frauds in various loan accounts and (e) that the First Respondent had not adhered to prudential norms relating to income recognition, asset classification and provisioning, etc. The Reserve Bank also took into account the compliance report submitted by the First Respondent on 30 August 2011 and the same was not found satisfactory. The Reserve Bank also noted that fresh cases of fraud were coming to light. In view of these circumstances, a show cause notice before cancellation of licence was served by the Reserve Bank to the First Respondent. The reply of the First Respondent dated 14 September 2011 was examined and found to be unsatisfactory specially having regard to the facts that (a) the First Respondent bank had admitted to the precarious financial position and (b) the gross and net NPAs had increased to Rs.3156.00 lakh and Rs.1981.00 lakh of gross and net advances respectively on 31 August 2011. Based on the material adverted to by it, the Reserve Bank came to the conclusion that -i) The financial position of the bank is precarious and there is no scope for its revival.ii) The bank is not in a position to pay its present and future depositors in full, as and when their claims accrue.iii) The bank does not comply with the provisions of Section 11(1), 22(3)(a) and (b) of the Act.iv) The affairs of the bank are being conducted in a manner detrimental to the interest of its present and future depositors.v) The public interest would be adversely affected if the bank is allowed to carry on its banking business any further.Based on the above findings, the Reserve Bank formed an opinion that allowing the bank to carry on banking business any further would be detrimental to the interests of the present and future depositors and hence, the licence granted to the bank to conduct banking business deserves to be cancelled. In these premises, the Reserve Bank cancelled the banking licence of the First Respondent under Section 22(4) of the BR Act with immediate effect.10 The impugned order, as noted above, is based on relevant and germane considerations and satisfied the requirements of sub-section (4) of Section 22 including the proviso to that sub-section.11 The Appellate Authority, acting under sub-section (5) of Section 22 of the BR Act, has duly considered the grounds of appeal raised by the First Respondent and the Petitioners and found the impugned order to be valid and justified. The Appellate Authority has accordingly rejected the appeal. The Appellate Authority, in particular, noted as follows:As regards the contentions of the appellant bank regarding improvement of the financial position after cancellation of licence, there is no convincing evidence placed before me to prove the claim. The audit for the year 2011-12 is yet to be completed which would bring out the latest financial position of the bank. The appellant bank was given ample opportunity to improve its financial position since 2005. However no improvement was noticed. If fact, the financial position continued to deteriorate. The appellant has not alleged any arbitrariness or illegality on the part of RBI while passing the order.12 It is not for this Court to question the wisdom of two expert bodies on the matter of banking business generally and fulfillment or otherwise of conditions requisite for continuing banking business in particular, whilst exercising its writ jurisdiction. It is trite saying that a Writ Court is concerned rather with the decision making process than the decision itself. We find nothing wrong with that decision making process here. The merits of the decision are best left to the expert body. The Court is not equipped to question the wisdom of such expert body in the matter.13 The Supreme Court in the case of Federation of Railway Officers Association vs. Union of India (2003) 4 SCC 289 ), whilst examining the scope of judicial review of a policy decision by the executive, held as follows:12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the court will not interfere with such matters.14 The impugned orders of the Reserve Bank and the Appellate Authority in cancelling, and affirming cancellation of, the banking licence of the First Respondent cannot be said to be inconsistent with the Constitution or in breach of any law or arbitratory or irrational or abuse of power. The orders, in the premises, are unassailable in the writ jurisdiction of this Court. | 0[ds]10 The impugned order, as noted above, is based on relevant and germane considerations and satisfied the requirements of(4) of Section 22 including the proviso to thatThe Appellate Authority, acting under(5) of Section 22 of the BR Act, has duly considered the grounds of appeal raised by the First Respondent and the Petitioners and found the impugned order to be valid and justified. The Appellate Authority has accordingly rejected the appeal. The Appellate Authority, in particular, noted as follows:As regards the contentions of the appellant bank regarding improvement of the financial position after cancellation of licence, there is no convincing evidence placed before me to prove the claim. The audit for the yearis yet to be completed which would bring out the latest financial position of the bank. The appellant bank was given ample opportunity to improve its financial position since 2005. However no improvement was noticed. If fact, the financial position continued to deteriorate. The appellant has not alleged any arbitrariness or illegality on the part of RBI while passing the order.12 It is not for this Court to question the wisdom of two expert bodies on the matter of banking business generally and fulfillment or otherwise of conditions requisite for continuing banking business in particular, whilst exercising its writ jurisdiction. It is trite saying that a Writ Court is concerned rather with the decision making process than the decision itself. We find nothing wrong with that decision making process here. The merits of the decision are best left to the expert body. The Court is not equipped to question the wisdom of such expert body in the matter.13 The Supreme Court in the case of Federation of Railway Officers Association vs. Union of India (2003) 4 SCC 289 ), whilst examining the scope of judicial review of a policy decision by the executive, held as follows:12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the court will not interfere with such matters.14 The impugned orders of the Reserve Bank and the Appellate Authority in cancelling, and affirming cancellation of, the banking licence of the First Respondent cannot be said to be inconsistent with the Constitution or in breach of any law or arbitratory or irrational or abuse of power. The orders, in the premises, are unassailable in the writ jurisdiction of this Court. | 0 | 3,055 | 524 | ### 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:
22.9 Now it needs to be seen if the Reserve Bank has come to form any such opinion in the present case and therefore, is within its authority to not grant any further time to the First Respondent despite appointment of a Board of Administrators for six months. The impugned order of the Reserve Bank dated 11 November 2011 notes the parameters such as Net Worth, CRAR, Deposit Erosion and Net Profit / Loss of the First Respondent as disclosed in the inspection on 31 March 2009, 31 March 2010 and 31 March 2011. Secondly, it notes the various deficiencies / irregularities revealed in the inspection report of 31 March 2011. In particular, it takes into account (a) that the erosion in the value of assets has not only wiped out the entire owned funds but the deposits have been eroded to the extent of 25.6% of total deposits, (b) that net NPAs had sharply increased from 26.6% as on 31 March 2010 to 42.3% as on 31 March 2011, (c) that the recoveries of NPA were not satisfactory, (d) that there were frauds in various loan accounts and (e) that the First Respondent had not adhered to prudential norms relating to income recognition, asset classification and provisioning, etc. The Reserve Bank also took into account the compliance report submitted by the First Respondent on 30 August 2011 and the same was not found satisfactory. The Reserve Bank also noted that fresh cases of fraud were coming to light. In view of these circumstances, a show cause notice before cancellation of licence was served by the Reserve Bank to the First Respondent. The reply of the First Respondent dated 14 September 2011 was examined and found to be unsatisfactory specially having regard to the facts that (a) the First Respondent bank had admitted to the precarious financial position and (b) the gross and net NPAs had increased to Rs.3156.00 lakh and Rs.1981.00 lakh of gross and net advances respectively on 31 August 2011. Based on the material adverted to by it, the Reserve Bank came to the conclusion that -i) The financial position of the bank is precarious and there is no scope for its revival.ii) The bank is not in a position to pay its present and future depositors in full, as and when their claims accrue.iii) The bank does not comply with the provisions of Section 11(1), 22(3)(a) and (b) of the Act.iv) The affairs of the bank are being conducted in a manner detrimental to the interest of its present and future depositors.v) The public interest would be adversely affected if the bank is allowed to carry on its banking business any further.Based on the above findings, the Reserve Bank formed an opinion that allowing the bank to carry on banking business any further would be detrimental to the interests of the present and future depositors and hence, the licence granted to the bank to conduct banking business deserves to be cancelled. In these premises, the Reserve Bank cancelled the banking licence of the First Respondent under Section 22(4) of the BR Act with immediate effect.10 The impugned order, as noted above, is based on relevant and germane considerations and satisfied the requirements of sub-section (4) of Section 22 including the proviso to that sub-section.11 The Appellate Authority, acting under sub-section (5) of Section 22 of the BR Act, has duly considered the grounds of appeal raised by the First Respondent and the Petitioners and found the impugned order to be valid and justified. The Appellate Authority has accordingly rejected the appeal. The Appellate Authority, in particular, noted as follows:As regards the contentions of the appellant bank regarding improvement of the financial position after cancellation of licence, there is no convincing evidence placed before me to prove the claim. The audit for the year 2011-12 is yet to be completed which would bring out the latest financial position of the bank. The appellant bank was given ample opportunity to improve its financial position since 2005. However no improvement was noticed. If fact, the financial position continued to deteriorate. The appellant has not alleged any arbitrariness or illegality on the part of RBI while passing the order.12 It is not for this Court to question the wisdom of two expert bodies on the matter of banking business generally and fulfillment or otherwise of conditions requisite for continuing banking business in particular, whilst exercising its writ jurisdiction. It is trite saying that a Writ Court is concerned rather with the decision making process than the decision itself. We find nothing wrong with that decision making process here. The merits of the decision are best left to the expert body. The Court is not equipped to question the wisdom of such expert body in the matter.13 The Supreme Court in the case of Federation of Railway Officers Association vs. Union of India (2003) 4 SCC 289 ), whilst examining the scope of judicial review of a policy decision by the executive, held as follows:12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the court will not interfere with such matters.14 The impugned orders of the Reserve Bank and the Appellate Authority in cancelling, and affirming cancellation of, the banking licence of the First Respondent cannot be said to be inconsistent with the Constitution or in breach of any law or arbitratory or irrational or abuse of power. The orders, in the premises, are unassailable in the writ jurisdiction of this Court.
### Response:
0
### Explanation:
10 The impugned order, as noted above, is based on relevant and germane considerations and satisfied the requirements of(4) of Section 22 including the proviso to thatThe Appellate Authority, acting under(5) of Section 22 of the BR Act, has duly considered the grounds of appeal raised by the First Respondent and the Petitioners and found the impugned order to be valid and justified. The Appellate Authority has accordingly rejected the appeal. The Appellate Authority, in particular, noted as follows:As regards the contentions of the appellant bank regarding improvement of the financial position after cancellation of licence, there is no convincing evidence placed before me to prove the claim. The audit for the yearis yet to be completed which would bring out the latest financial position of the bank. The appellant bank was given ample opportunity to improve its financial position since 2005. However no improvement was noticed. If fact, the financial position continued to deteriorate. The appellant has not alleged any arbitrariness or illegality on the part of RBI while passing the order.12 It is not for this Court to question the wisdom of two expert bodies on the matter of banking business generally and fulfillment or otherwise of conditions requisite for continuing banking business in particular, whilst exercising its writ jurisdiction. It is trite saying that a Writ Court is concerned rather with the decision making process than the decision itself. We find nothing wrong with that decision making process here. The merits of the decision are best left to the expert body. The Court is not equipped to question the wisdom of such expert body in the matter.13 The Supreme Court in the case of Federation of Railway Officers Association vs. Union of India (2003) 4 SCC 289 ), whilst examining the scope of judicial review of a policy decision by the executive, held as follows:12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the court will not interfere with such matters.14 The impugned orders of the Reserve Bank and the Appellate Authority in cancelling, and affirming cancellation of, the banking licence of the First Respondent cannot be said to be inconsistent with the Constitution or in breach of any law or arbitratory or irrational or abuse of power. The orders, in the premises, are unassailable in the writ jurisdiction of this Court.
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National Insurance Co.Ltd Vs. Sehtia Shoes | petition was maintainable. The District Forum awarded a sum of Rs.4,95,000/-. In appeal, the State Commission dismissed the appeal after noticing the rival stands which were reiteration of the stands taken before the District Forum. A revision, as noted above, was filed before the National Commission which dismissed the same holding as follows: "In our view, the impugned order passed by the State Commission does not call for any interference. The District Forum as well as State Commission considered the various statements including Income-tax and Sales Tax returns as well as statements submitted to the bank and also surveyors report. In our view, the assessment by the surveyor in the present case cannot be accepted because surveyor has observed that even though the shoes were affected by water and smoke, yet the loss would be only 30% and thereafter reduced the assessment of loss, in our view this was unjustified. Hence revision petition is dismissed." 5. Learned counsel for the appellant submitted that though a claim can be entertained even when there is a settlement to receive a particular amount, yet the same is subject to the condition that the earlier settlement was obtained under coercion and/or was not on account of free will. In the instant case it is submitted this vital aspect has been lost sight of by the District Forum, the State Commission and the National Commission. 6. In response, learned counsel for the respondent submitted that immediately after the so called settlement was arrived at grievance, was lodged with the authority stating that settlement was not free and fair.7. In United India Insurance. v. Ajmer Singh Cotton & General Mills and Ors. (1999 (6) SCC 400 ), it was, inter alia, observed as follows: "4. We have heard learned counsel for the parties and perused the record. It is true that the award of interest is not specifically authorised under the Consumer Protection Act, 1986 (hereinafter called "the Act") but in view of our judgment in Sovintorg (India) Ltd. v. State Bank of India, Civil Appeal No. 82 of 1992 decided on 11.8.1999, we are of the opinion that in appropriate cases the forum and the commissions under the Act are authorised to grant reasonable interest under the facts and circumstances of each case. The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.5. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd, OP No. 52 of 1991 decided on 28.11.1991, shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint." 8. Filing of a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration. It would do well to dispose of the matter as early as practicable, preferably by the end of September, 2008. 9. | 1[ds]In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd, OP No. 52 of 1991 decided on 28.11.1991, shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing theof a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration. It would do well to dispose of the matter as early as practicable, preferably by the end of September, | 1 | 1,372 | 341 | ### 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:
petition was maintainable. The District Forum awarded a sum of Rs.4,95,000/-. In appeal, the State Commission dismissed the appeal after noticing the rival stands which were reiteration of the stands taken before the District Forum. A revision, as noted above, was filed before the National Commission which dismissed the same holding as follows: "In our view, the impugned order passed by the State Commission does not call for any interference. The District Forum as well as State Commission considered the various statements including Income-tax and Sales Tax returns as well as statements submitted to the bank and also surveyors report. In our view, the assessment by the surveyor in the present case cannot be accepted because surveyor has observed that even though the shoes were affected by water and smoke, yet the loss would be only 30% and thereafter reduced the assessment of loss, in our view this was unjustified. Hence revision petition is dismissed." 5. Learned counsel for the appellant submitted that though a claim can be entertained even when there is a settlement to receive a particular amount, yet the same is subject to the condition that the earlier settlement was obtained under coercion and/or was not on account of free will. In the instant case it is submitted this vital aspect has been lost sight of by the District Forum, the State Commission and the National Commission. 6. In response, learned counsel for the respondent submitted that immediately after the so called settlement was arrived at grievance, was lodged with the authority stating that settlement was not free and fair.7. In United India Insurance. v. Ajmer Singh Cotton & General Mills and Ors. (1999 (6) SCC 400 ), it was, inter alia, observed as follows: "4. We have heard learned counsel for the parties and perused the record. It is true that the award of interest is not specifically authorised under the Consumer Protection Act, 1986 (hereinafter called "the Act") but in view of our judgment in Sovintorg (India) Ltd. v. State Bank of India, Civil Appeal No. 82 of 1992 decided on 11.8.1999, we are of the opinion that in appropriate cases the forum and the commissions under the Act are authorised to grant reasonable interest under the facts and circumstances of each case. The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.5. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd, OP No. 52 of 1991 decided on 28.11.1991, shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint." 8. Filing of a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration. It would do well to dispose of the matter as early as practicable, preferably by the end of September, 2008. 9.
### Response:
1
### Explanation:
In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd, OP No. 52 of 1991 decided on 28.11.1991, shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing theof a complaint is, therefore, not barred; but it has to be proved that agreement to accept a particular amount was on account of coercion. In the instant case, this relevant factor has not been considered specifically by the District Forum, State Commission and the National Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by the appellant. There is no dispute that the discharge voucher had been signed by the respondent. There has to be an adjudication as to whether the discharge voucher was signed voluntarily or under coercion. We remit the matter to the District Forum for fresh consideration. It would do well to dispose of the matter as early as practicable, preferably by the end of September,
|
NETRAM SAHU Vs. STATE OF CHHATTISGARH | him eligible to claim gratuity, as provided under the Act, from the State.10. Heard Mr. Kiran Kumar Jaipuriar, learned counsel for the appellant and Mr. Aniruddha P. Mayee, learned counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and Division Bench) restore the orders of the Controlling Authority and Appellate Authority.12. It is not in dispute that the appellant has actually rendered the total service for a period of 25 years 3 months, i.e., from 01.04.1986 to 30.07.2011 to the State. It is also not in dispute that the appellants services were regularized by the State by order dated 06.05.2008, i.e., much prior to the appellant attained the age of superannuation. It is also not in dispute that the appellants 25 years and 3 months period of service satisfied the rigor of the expression "continuous service" as defined under Section 2-A of the Act.13. The submission of the learned counsel for the respondent-State was that the appellant could not be held eligible to claim the gratuity amount because out of the total period of 25 years of his service, he worked 22 years as daily wager and only 3 years as regular employee. It is for this reason, the learned counsel urged that the appellant could not be said to have worked continuously for a period of 5 years as provided under the Act so as to make him eligible to claim gratuity.14. We do not agree with this submission of learned counsel for the respondent-State for more than one reason. First, the appellant has actually rendered the service for a period of 25 years; Second, the State actually regularized his services by passing the order dated 06.05.2008; Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.15. In our considered opinion, the High Court committed an error in placing reliance on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the services of the appellant was actually regularized by the State and, therefore, the law laid down in Umadevi(supra) could not be relied on. Indeed, even the decision of Umadevi (supra) makes a distinction in cases and where the services stand regularized, the ratio of Umadevi to deny the relief would not apply.16. In our considered opinion, once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved.17. In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is denied his legitimate claim of gratuity despite rendering“continuous service”for a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.18. It was indeed the State who took 22 years to regularize the service of the appellant and went on taking work from the appellant on payment of a meager salary of Rs.2776/- per month for 22 long years uninterruptedly and only in the last three years, the State started paying a salary of Rs.11,107/- per month to the appellant. Having regularized the services of the appellant, the State had no justifiable reason to deny the benefit of gratuity to the appellant which was his statutory right under the Act. It being a welfare legislation meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the gratuity amount to the appellant rather than to force the employee to approach the Court to get his genuine claim.19. In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years.20. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla (as he then was) in the case of Firm Kaluram Sitaram vs. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinent observations:“Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.”21. These observations apply in full force against the State in this case because just case of the appellant was being opposed by the State on technical grounds. | 1[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and Division Bench) restore the orders of the Controlling Authority and Appellate Authority.12. It is not in dispute that the appellant has actually rendered the total service for a period of 25 years 3 months, i.e., from 01.04.1986 to 30.07.2011 to the State. It is also not in dispute that theservices were regularized by the State by order dated 06.05.2008, i.e., much prior to the appellant attained the age of superannuation. It is also not in dispute that the25 years and 3 months period of service satisfied the rigor of the expression "continuous service" as defined under SectionThe submission of the learned counsel for thes that the appellant could not be held eligible to claim the gratuity amount because out of the total period of 25 years of his service, he worked 22 years as daily wager and only 3 years as regular employee. It is for this reason, the learned counsel urged that the appellant could not be said to have worked continuously for a period of 5 years as provided under the Act so as to make him eligible to claim gratuity.We do not agree with this submission of learned counsel for thefor more than one reason. First, the appellant has actually rendered the service for a period of 25 years; Second, the State actually regularized his services by passing the order dated 06.05.2008; Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.15. In our considered opinion, the High Court committed an error in placing reliance on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the services of the appellant was actually regularized by the State and, therefore, the law laid down in Umadevi(supra) could not be relied on. Indeed, even the decision of Umadevi (supra) makes a distinction in cases and where the services stand regularized, the ratio of Umadevi to deny the relief would not apply.16. In our considered opinion, once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved.17. In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is denied his legitimate claim of gratuity despiter a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years.20. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla (as he then was) in the case of Firm Kaluram Sitaram vs. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinentwe have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.These observations apply in full force against the State in this case because just case of the appellant was being opposed by the State on technical grounds. | 1 | 1,747 | 889 | ### 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:
him eligible to claim gratuity, as provided under the Act, from the State.10. Heard Mr. Kiran Kumar Jaipuriar, learned counsel for the appellant and Mr. Aniruddha P. Mayee, learned counsel for the respondents.11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and Division Bench) restore the orders of the Controlling Authority and Appellate Authority.12. It is not in dispute that the appellant has actually rendered the total service for a period of 25 years 3 months, i.e., from 01.04.1986 to 30.07.2011 to the State. It is also not in dispute that the appellants services were regularized by the State by order dated 06.05.2008, i.e., much prior to the appellant attained the age of superannuation. It is also not in dispute that the appellants 25 years and 3 months period of service satisfied the rigor of the expression "continuous service" as defined under Section 2-A of the Act.13. The submission of the learned counsel for the respondent-State was that the appellant could not be held eligible to claim the gratuity amount because out of the total period of 25 years of his service, he worked 22 years as daily wager and only 3 years as regular employee. It is for this reason, the learned counsel urged that the appellant could not be said to have worked continuously for a period of 5 years as provided under the Act so as to make him eligible to claim gratuity.14. We do not agree with this submission of learned counsel for the respondent-State for more than one reason. First, the appellant has actually rendered the service for a period of 25 years; Second, the State actually regularized his services by passing the order dated 06.05.2008; Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.15. In our considered opinion, the High Court committed an error in placing reliance on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the services of the appellant was actually regularized by the State and, therefore, the law laid down in Umadevi(supra) could not be relied on. Indeed, even the decision of Umadevi (supra) makes a distinction in cases and where the services stand regularized, the ratio of Umadevi to deny the relief would not apply.16. In our considered opinion, once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved.17. In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is denied his legitimate claim of gratuity despite rendering“continuous service”for a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.18. It was indeed the State who took 22 years to regularize the service of the appellant and went on taking work from the appellant on payment of a meager salary of Rs.2776/- per month for 22 long years uninterruptedly and only in the last three years, the State started paying a salary of Rs.11,107/- per month to the appellant. Having regularized the services of the appellant, the State had no justifiable reason to deny the benefit of gratuity to the appellant which was his statutory right under the Act. It being a welfare legislation meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the gratuity amount to the appellant rather than to force the employee to approach the Court to get his genuine claim.19. In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years.20. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla (as he then was) in the case of Firm Kaluram Sitaram vs. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinent observations:“Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.”21. These observations apply in full force against the State in this case because just case of the appellant was being opposed by the State on technical grounds.
### Response:
1
### Explanation:
11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and Division Bench) restore the orders of the Controlling Authority and Appellate Authority.12. It is not in dispute that the appellant has actually rendered the total service for a period of 25 years 3 months, i.e., from 01.04.1986 to 30.07.2011 to the State. It is also not in dispute that theservices were regularized by the State by order dated 06.05.2008, i.e., much prior to the appellant attained the age of superannuation. It is also not in dispute that the25 years and 3 months period of service satisfied the rigor of the expression "continuous service" as defined under SectionThe submission of the learned counsel for thes that the appellant could not be held eligible to claim the gratuity amount because out of the total period of 25 years of his service, he worked 22 years as daily wager and only 3 years as regular employee. It is for this reason, the learned counsel urged that the appellant could not be said to have worked continuously for a period of 5 years as provided under the Act so as to make him eligible to claim gratuity.We do not agree with this submission of learned counsel for thefor more than one reason. First, the appellant has actually rendered the service for a period of 25 years; Second, the State actually regularized his services by passing the order dated 06.05.2008; Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.15. In our considered opinion, the High Court committed an error in placing reliance on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the services of the appellant was actually regularized by the State and, therefore, the law laid down in Umadevi(supra) could not be relied on. Indeed, even the decision of Umadevi (supra) makes a distinction in cases and where the services stand regularized, the ratio of Umadevi to deny the relief would not apply.16. In our considered opinion, once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved.17. In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is denied his legitimate claim of gratuity despiter a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years.20. Indeed, this reminds us of the apt observations made by the Chief Justice M.C. Chagla (as he then was) in the case of Firm Kaluram Sitaram vs. The Dominion of India (AIR 1954 Bombay 50). The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinentwe have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.These observations apply in full force against the State in this case because just case of the appellant was being opposed by the State on technical grounds.
|
M/s. Vaishno Enterprises Vs. Hamilton Medical AG & Anr | Shri Divan, learned Senior Advocate for Respondent No.1 that even otherwise considering the relevant provisions of the Arbitration Agreement the parties to the Agreement shall not be governed by the MSME Act. It is submitted that in the present case the date of contract was 24.08.2020. The appellant herein is registered as MSME on 28.08.2020 i.e. after the execution of the contract on 24.08.2020. It is submitted that as per the Arbitration Agreement the parties shall be governed by the law applicable in India which shall be the law prevailing at the time of the execution of the contract. It is submitted that for that reason also the parties shall not be governed by the MSME Act and therefore the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent No.1. 6. In rejoinder learned counsel appearing on behalf of the appellant has submitted that as the dispute arose subsequently i.e. subsequent to 28.08.2020 and therefore at the time when the dispute arose the appellant was the registered MSME and therefore, for the dispute between the appellant and the respondent which has arisen subsequent to 28.08.2020, the Council would have jurisdiction. 7. Heard learned counsel for the respective parties at length. 8. The short question which is posed for consideration before this Court is the jurisdiction of the Council under the MSME Act with respect to the dispute between the appellant and the respondent. 8.1 It was the case on behalf of Respondent No.1 – Buyer that as the Respondent No.1 - buyer is located outside India and is having its registered office at Switzerland the Council would have no jurisdiction to enter into the dispute between the appellant and the respondent. On the other hand, it is the case on behalf of the appellant that the agreements were executed between the parties at Delhi and the services were rendered by the appellant in India and even the Respondent No.1 is conducting its business in India through registered service centres at New Delhi, Mumbai, Kolkata, Bangalore and it had appointed a power of attorney/special agent which is based in Delhi, and after having availed the services rendered by the appellant and doing business in India, thereafter it will not be open for Respondent No.1 to contend that with respect to the dispute between the appellant and the respondent, the Council would have no jurisdiction under the MSME Act. However, while considering the main issue whether the parties shall be governed by the MSME Act or not, the relevant clause under the Agreement is required to be considered which reads as under: 9. CHOICE OF LAW This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of India. The parties agree to resolve their differences, disputes, if any, mutually, within 30 days of the initiation of the dispute which can be extended by the mutual consent of the parties, if necessary. In the event the parties are not able to resolve the differences by way of the said mutual dialogues, they are at a liberty to initiate appropriate actions as per law. 8.2 It is not in dispute that the contract/agreement between the appellant and the respondent has been executed on 24.08.2020. Therefore, the laws of India applicable at the time of contract/agreement shall be applicable and therefore the parties shall be governed by the laws of India prevailing/applicable at the time when the contract was executed. It is admitted position that the date on which a contract/agreement was executed i.e. on 24.08.2020 the appellant was not registered MSME. Considering the relevant provisions of the MSME Act more particularly Section 2(n) read with Section 8 of the MSME Act, the provisions of the MSME Act shall be applicable in case of supplier who has filed a memorandum with the authority referred to in sub-section (1) of Section 8. Therefore, the supplier has to be a micro or small enterprise registered as MSME, registered with any of the authority mentioned in sub-section (1) of Section 8 and Section 2(n) of the MSME Act. It is admitted position that in the present case the appellant is registered as MSME only on 28.08.2020. Therefore, when the contract was entered into the appellant was not MSME and therefore the parties would not be governed by the MSME Act and the parties shall be governed by the laws of India applicable and/or prevailing at the time of execution of the contract. If that be so the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent no.1, in exercise of powers under Section 18 of the MSME Act. Therefore, in the aforesaid peculiar facts and circumstances of the case, more particularly the terms of the Agreement, the order passed by the learned Single Judge confirmed by the Division Bench holding the Council would have no jurisdiction with respect to Respondent No.1 is not required to be interfered with. 8.3. However, at the same time, the larger question/issue whether in a case where the buyer is located outside India but has availed the services in India and/or done the business in India with the Indian supplier and the contract was executed in India the MSME Act would be applicable or not and/or another larger issue that in case the supplier is subsequently registered as MSME the Council would still have jurisdiction are kept open to be considered in an appropriate case bearing in mind Section 18 as well as Section 8 of the MSME Act and the judgments of this Court in the case of M/s Shilpi Industries vs. Kerala State Road Transport Corporation, C.A. No.1570-78 of 2021 [2021 SCC Online SC 439] arising under the provisions of MSME Act and Shanti Conductors Pvt. Ltd. Vs. Assam State Electricity Board, (2019) 19 SCC 529 in which case a similar provision under the Small Scale and Ancillary Industries Undertakings, Act, 1993 came up for consideration before this Court. | 0[ds]8.2 It is not in dispute that the contract/agreement between the appellant and the respondent has been executed on 24.08.2020. Therefore, the laws of India applicable at the time of contract/agreement shall be applicable and therefore the parties shall be governed by the laws of India prevailing/applicable at the time when the contract was executed. It is admitted position that the date on which a contract/agreement was executed i.e. on 24.08.2020 the appellant was not registered MSME. Considering the relevant provisions of the MSME Act more particularly Section 2(n) read with Section 8 of the MSME Act, the provisions of the MSME Act shall be applicable in case of supplier who has filed a memorandum with the authority referred to in sub-section (1) of Section 8. Therefore, the supplier has to be a micro or small enterprise registered as MSME, registered with any of the authority mentioned in sub-section (1) of Section 8 and Section 2(n) of the MSME Act. It is admitted position that in the present case the appellant is registered as MSME only on 28.08.2020. Therefore, when the contract was entered into the appellant was not MSME and therefore the parties would not be governed by the MSME Act and the parties shall be governed by the laws of India applicable and/or prevailing at the time of execution of the contract. If that be so the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent no.1, in exercise of powers under Section 18 of the MSME Act. Therefore, in the aforesaid peculiar facts and circumstances of the case, more particularly the terms of the Agreement, the order passed by the learned Single Judge confirmed by the Division Bench holding the Council would have no jurisdiction with respect to Respondent No.1 is not required to be interfered with.8.3. However, at the same time, the larger question/issue whether in a case where the buyer is located outside India but has availed the services in India and/or done the business in India with the Indian supplier and the contract was executed in India the MSME Act would be applicable or not and/or another larger issue that in case the supplier is subsequently registered as MSME the Council would still have jurisdiction are kept open to be considered in an appropriate case bearing in mind Section 18 as well as Section 8 of the MSME Act and the judgments of this Court in the case of M/s Shilpi Industries vs. Kerala State Road Transport Corporation, C.A. No.1570-78 of 2021 [2021 SCC Online SC 439] arising under the provisions of MSME Act and Shanti Conductors Pvt. Ltd. Vs. Assam State Electricity Board, (2019) 19 SCC 529 in which case a similar provision under the Small Scale and Ancillary Industries Undertakings, Act, 1993 came up for consideration before this Court. | 0 | 2,718 | 520 | ### 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:
Shri Divan, learned Senior Advocate for Respondent No.1 that even otherwise considering the relevant provisions of the Arbitration Agreement the parties to the Agreement shall not be governed by the MSME Act. It is submitted that in the present case the date of contract was 24.08.2020. The appellant herein is registered as MSME on 28.08.2020 i.e. after the execution of the contract on 24.08.2020. It is submitted that as per the Arbitration Agreement the parties shall be governed by the law applicable in India which shall be the law prevailing at the time of the execution of the contract. It is submitted that for that reason also the parties shall not be governed by the MSME Act and therefore the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent No.1. 6. In rejoinder learned counsel appearing on behalf of the appellant has submitted that as the dispute arose subsequently i.e. subsequent to 28.08.2020 and therefore at the time when the dispute arose the appellant was the registered MSME and therefore, for the dispute between the appellant and the respondent which has arisen subsequent to 28.08.2020, the Council would have jurisdiction. 7. Heard learned counsel for the respective parties at length. 8. The short question which is posed for consideration before this Court is the jurisdiction of the Council under the MSME Act with respect to the dispute between the appellant and the respondent. 8.1 It was the case on behalf of Respondent No.1 – Buyer that as the Respondent No.1 - buyer is located outside India and is having its registered office at Switzerland the Council would have no jurisdiction to enter into the dispute between the appellant and the respondent. On the other hand, it is the case on behalf of the appellant that the agreements were executed between the parties at Delhi and the services were rendered by the appellant in India and even the Respondent No.1 is conducting its business in India through registered service centres at New Delhi, Mumbai, Kolkata, Bangalore and it had appointed a power of attorney/special agent which is based in Delhi, and after having availed the services rendered by the appellant and doing business in India, thereafter it will not be open for Respondent No.1 to contend that with respect to the dispute between the appellant and the respondent, the Council would have no jurisdiction under the MSME Act. However, while considering the main issue whether the parties shall be governed by the MSME Act or not, the relevant clause under the Agreement is required to be considered which reads as under: 9. CHOICE OF LAW This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of India. The parties agree to resolve their differences, disputes, if any, mutually, within 30 days of the initiation of the dispute which can be extended by the mutual consent of the parties, if necessary. In the event the parties are not able to resolve the differences by way of the said mutual dialogues, they are at a liberty to initiate appropriate actions as per law. 8.2 It is not in dispute that the contract/agreement between the appellant and the respondent has been executed on 24.08.2020. Therefore, the laws of India applicable at the time of contract/agreement shall be applicable and therefore the parties shall be governed by the laws of India prevailing/applicable at the time when the contract was executed. It is admitted position that the date on which a contract/agreement was executed i.e. on 24.08.2020 the appellant was not registered MSME. Considering the relevant provisions of the MSME Act more particularly Section 2(n) read with Section 8 of the MSME Act, the provisions of the MSME Act shall be applicable in case of supplier who has filed a memorandum with the authority referred to in sub-section (1) of Section 8. Therefore, the supplier has to be a micro or small enterprise registered as MSME, registered with any of the authority mentioned in sub-section (1) of Section 8 and Section 2(n) of the MSME Act. It is admitted position that in the present case the appellant is registered as MSME only on 28.08.2020. Therefore, when the contract was entered into the appellant was not MSME and therefore the parties would not be governed by the MSME Act and the parties shall be governed by the laws of India applicable and/or prevailing at the time of execution of the contract. If that be so the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent no.1, in exercise of powers under Section 18 of the MSME Act. Therefore, in the aforesaid peculiar facts and circumstances of the case, more particularly the terms of the Agreement, the order passed by the learned Single Judge confirmed by the Division Bench holding the Council would have no jurisdiction with respect to Respondent No.1 is not required to be interfered with. 8.3. However, at the same time, the larger question/issue whether in a case where the buyer is located outside India but has availed the services in India and/or done the business in India with the Indian supplier and the contract was executed in India the MSME Act would be applicable or not and/or another larger issue that in case the supplier is subsequently registered as MSME the Council would still have jurisdiction are kept open to be considered in an appropriate case bearing in mind Section 18 as well as Section 8 of the MSME Act and the judgments of this Court in the case of M/s Shilpi Industries vs. Kerala State Road Transport Corporation, C.A. No.1570-78 of 2021 [2021 SCC Online SC 439] arising under the provisions of MSME Act and Shanti Conductors Pvt. Ltd. Vs. Assam State Electricity Board, (2019) 19 SCC 529 in which case a similar provision under the Small Scale and Ancillary Industries Undertakings, Act, 1993 came up for consideration before this Court.
### Response:
0
### Explanation:
8.2 It is not in dispute that the contract/agreement between the appellant and the respondent has been executed on 24.08.2020. Therefore, the laws of India applicable at the time of contract/agreement shall be applicable and therefore the parties shall be governed by the laws of India prevailing/applicable at the time when the contract was executed. It is admitted position that the date on which a contract/agreement was executed i.e. on 24.08.2020 the appellant was not registered MSME. Considering the relevant provisions of the MSME Act more particularly Section 2(n) read with Section 8 of the MSME Act, the provisions of the MSME Act shall be applicable in case of supplier who has filed a memorandum with the authority referred to in sub-section (1) of Section 8. Therefore, the supplier has to be a micro or small enterprise registered as MSME, registered with any of the authority mentioned in sub-section (1) of Section 8 and Section 2(n) of the MSME Act. It is admitted position that in the present case the appellant is registered as MSME only on 28.08.2020. Therefore, when the contract was entered into the appellant was not MSME and therefore the parties would not be governed by the MSME Act and the parties shall be governed by the laws of India applicable and/or prevailing at the time of execution of the contract. If that be so the Council would have no jurisdiction to entertain the dispute between the appellant and the Respondent no.1, in exercise of powers under Section 18 of the MSME Act. Therefore, in the aforesaid peculiar facts and circumstances of the case, more particularly the terms of the Agreement, the order passed by the learned Single Judge confirmed by the Division Bench holding the Council would have no jurisdiction with respect to Respondent No.1 is not required to be interfered with.8.3. However, at the same time, the larger question/issue whether in a case where the buyer is located outside India but has availed the services in India and/or done the business in India with the Indian supplier and the contract was executed in India the MSME Act would be applicable or not and/or another larger issue that in case the supplier is subsequently registered as MSME the Council would still have jurisdiction are kept open to be considered in an appropriate case bearing in mind Section 18 as well as Section 8 of the MSME Act and the judgments of this Court in the case of M/s Shilpi Industries vs. Kerala State Road Transport Corporation, C.A. No.1570-78 of 2021 [2021 SCC Online SC 439] arising under the provisions of MSME Act and Shanti Conductors Pvt. Ltd. Vs. Assam State Electricity Board, (2019) 19 SCC 529 in which case a similar provision under the Small Scale and Ancillary Industries Undertakings, Act, 1993 came up for consideration before this Court.
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Shipping Corporation of India Limited and Another Vs. Nissar Export Corporation | the loading authorities would stop the loading of the Madras cargo and would have to load the entire Nagapattinam Onion cargo first and then only ours would be loaded, which amounted to preferential and discriminatory treatment given to Nagapattinam cargo, though the same reached Madras harbour much later than October 30, 1973. The decision to load the Nagapattinam cargo even in the space allotted to the Madras cargo is deliberate and with some objective. The reasons given viz., that at Nagapattinam the sea is rough, hence Nagapattinam cargo has to be loaded, is an afterthought since the cargo space booked for Madras cargo has also been utilised for Nagapattinam cargo for some reason best known to them. They have, therefore, not exercised their discretion bona fide and reasonably. Despite our strong protest, the second defendant took on board the entire Nagapattinam cargo, even while it was raining and closed the hatches leaving our ENTIRE LOT besides few other Madras partys partial consignment and the ship sailed leaving behind our PERISHABLE cargo, even though our space was booked. By so doing the second defendants have not only discriminated but also shown undue favouritism, thereby exposed both the defendants to criticism and damages for which both the defendants alone are responsible.6. The defect which the Division Bench found in the case of the appellants is that the averments contained in paragraph 6 of the written statement were not traversed by them. Those averments, according to the Division Bench, had therefore to be deemed to have been admitted. Dr. Chitale, who appears on behalf of the appellants has drawn our attention to the whole of the written statement filed by his clients from which it seems to us clear that the averments made by the respondent in paragraph 6 of the plaint have been specifically traversed and denied by the appellants. It is true that none of the paragraphs of the written statement refers expressly or numerically to paragraph 6 of the plaints but that is a matter of form and not of substance. The various averments contained in paragraphs 5 and 7 to 10 of the written statement are specifically directed at the averments made in paragraph 6 of the plaint. The case made out by the respondent in paragraph 6 of the plaint is that the appellants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras cargo without any valid reason. The appellants have given specific and elaborate reasons as to why it became necessary to load Nagapattinam cargo before completing the loading of the Madras cargo.7. In paragraph 5 of the written statement of the 2nd appellant which was adopted by the 1st appellant, it is stated that according to the conditions of the shipping order, the appellants could not be made responsible for the cargo which was shut out. In paragraph 7 of the written statement it is stated that (a) the export cargo is loaded on a turn-wise basis; (b) the vessel M. V. Chidambaram encountered rain from October 29 to November 2; (c) the vessel was to sail from Madras on October 31 and call at Nagapattinam on November 1; (d) the Port Officer at Nagapattinam informed on October 28 that the weather conditions prevailing there were not conducive for the embarcation of the passengers or the loading of goods; (e) it was decided for that reason 8to embark all the passengers at Madras itself and to load the Nagapattinam cargo at Madras and that, accordingly, the Nagapattinam cargo was brought to Madras; (f) since the complete cargo could not be loaded without causing undue delay in the departure of the ship, a part of the cargo had to be necessarily shut off; and (g) that a passenger vessel cannot be detained merely for the reason that the loading of the cargo is not complete. In paragraph 8 of the written statement it is stated that steps had to be taken for the proper loading of consignments as any contract with the rain-water would have resulted in total deterioration of onions and that no preferential treatment was given to any of the persons whose cargo was accepted for loading. In paragraph 9 it is stated that as far as the Madras cargo is concerned, space was allotted to the persons who had moved their cargo to the ships side on a turn-wise basis and that the shut out of the respondents cargo, amongst that of others, was due to force majeure. Finally, in paragraph 10 of the written statement it is stated that no special favour was shown to any of the shippers, that the ship had sufficient space to carry the entire cargo but that it could not do so due to adverse weather conditions and that it was not true that the respondents cargo was shut out deliberately.8. We are unable to understand how, in view of these averments in the written statement, it can be said that the allegations made by the respondent in paragraph 6 of the plaint have not been traversed by the appellants. We are of the opinion that those allegations have been fully and effectively traversed by the appellants and therefore the learned Trial Judge was justified in disposing of the suit on the basis of the issues framed by him in the suit.9. We might mention that the respondent-plaintiff did not contend in the trial Court, that the allegations contained in paragraph 6 of the plaint were not traversed by the appellants and should therefore be deemed to have been admitted. No objection was raised to the learned Trial Judge raising an issue on the matters stated in paragraph 6 of the plaint. We do not think that the respondent should have been permitted in these circumstances to raise for the first time in the appeal the contention that a part of his claim must be deemed to have been admitted for the reason that it was not traversed in in the written statement. | 1[ds]It is true that none of the paragraphs of the written statement refers expressly or numerically to paragraph 6 of the plaints but that is a matter of form and not of substance. The various averments contained in paragraphs 5 and 7 to 10 of the written statement are specifically directed at the averments made in paragraph 6 of the plaint. The case made out by the respondent in paragraph 6 of the plaint is that the appellants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras cargo without any valid reason. The appellants have given specific and elaborate reasons as to why it became necessary to load Nagapattinam cargo before completing the loading of the Madras cargo.We are unable to understand how, in view of these averments in the written statement, it can be said that the allegations made by the respondent in paragraph 6 of the plaint have not been traversed by the appellants. We are of the opinion that those allegations have been fully and effectively traversed by the appellants and therefore the learned Trial Judge was justified in disposing of the suit on the basis of the issues framed by him in the suit.9. We might mention that thedid not contend in the trial Court, that the allegations contained in paragraph 6 of the plaint were not traversed by the appellants and should therefore be deemed to have been admitted. No objection was raised to the learned Trial Judge raising an issue on the matters stated in paragraph 6 of the plaint. We do not think that the respondent should have been permitted in these circumstances to raise for the first time in the appeal the contention that a part of his claim must be deemed to have been admitted for the reason that it was not traversed in in the written statement. | 1 | 1,632 | 327 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the loading authorities would stop the loading of the Madras cargo and would have to load the entire Nagapattinam Onion cargo first and then only ours would be loaded, which amounted to preferential and discriminatory treatment given to Nagapattinam cargo, though the same reached Madras harbour much later than October 30, 1973. The decision to load the Nagapattinam cargo even in the space allotted to the Madras cargo is deliberate and with some objective. The reasons given viz., that at Nagapattinam the sea is rough, hence Nagapattinam cargo has to be loaded, is an afterthought since the cargo space booked for Madras cargo has also been utilised for Nagapattinam cargo for some reason best known to them. They have, therefore, not exercised their discretion bona fide and reasonably. Despite our strong protest, the second defendant took on board the entire Nagapattinam cargo, even while it was raining and closed the hatches leaving our ENTIRE LOT besides few other Madras partys partial consignment and the ship sailed leaving behind our PERISHABLE cargo, even though our space was booked. By so doing the second defendants have not only discriminated but also shown undue favouritism, thereby exposed both the defendants to criticism and damages for which both the defendants alone are responsible.6. The defect which the Division Bench found in the case of the appellants is that the averments contained in paragraph 6 of the written statement were not traversed by them. Those averments, according to the Division Bench, had therefore to be deemed to have been admitted. Dr. Chitale, who appears on behalf of the appellants has drawn our attention to the whole of the written statement filed by his clients from which it seems to us clear that the averments made by the respondent in paragraph 6 of the plaint have been specifically traversed and denied by the appellants. It is true that none of the paragraphs of the written statement refers expressly or numerically to paragraph 6 of the plaints but that is a matter of form and not of substance. The various averments contained in paragraphs 5 and 7 to 10 of the written statement are specifically directed at the averments made in paragraph 6 of the plaint. The case made out by the respondent in paragraph 6 of the plaint is that the appellants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras cargo without any valid reason. The appellants have given specific and elaborate reasons as to why it became necessary to load Nagapattinam cargo before completing the loading of the Madras cargo.7. In paragraph 5 of the written statement of the 2nd appellant which was adopted by the 1st appellant, it is stated that according to the conditions of the shipping order, the appellants could not be made responsible for the cargo which was shut out. In paragraph 7 of the written statement it is stated that (a) the export cargo is loaded on a turn-wise basis; (b) the vessel M. V. Chidambaram encountered rain from October 29 to November 2; (c) the vessel was to sail from Madras on October 31 and call at Nagapattinam on November 1; (d) the Port Officer at Nagapattinam informed on October 28 that the weather conditions prevailing there were not conducive for the embarcation of the passengers or the loading of goods; (e) it was decided for that reason 8to embark all the passengers at Madras itself and to load the Nagapattinam cargo at Madras and that, accordingly, the Nagapattinam cargo was brought to Madras; (f) since the complete cargo could not be loaded without causing undue delay in the departure of the ship, a part of the cargo had to be necessarily shut off; and (g) that a passenger vessel cannot be detained merely for the reason that the loading of the cargo is not complete. In paragraph 8 of the written statement it is stated that steps had to be taken for the proper loading of consignments as any contract with the rain-water would have resulted in total deterioration of onions and that no preferential treatment was given to any of the persons whose cargo was accepted for loading. In paragraph 9 it is stated that as far as the Madras cargo is concerned, space was allotted to the persons who had moved their cargo to the ships side on a turn-wise basis and that the shut out of the respondents cargo, amongst that of others, was due to force majeure. Finally, in paragraph 10 of the written statement it is stated that no special favour was shown to any of the shippers, that the ship had sufficient space to carry the entire cargo but that it could not do so due to adverse weather conditions and that it was not true that the respondents cargo was shut out deliberately.8. We are unable to understand how, in view of these averments in the written statement, it can be said that the allegations made by the respondent in paragraph 6 of the plaint have not been traversed by the appellants. We are of the opinion that those allegations have been fully and effectively traversed by the appellants and therefore the learned Trial Judge was justified in disposing of the suit on the basis of the issues framed by him in the suit.9. We might mention that the respondent-plaintiff did not contend in the trial Court, that the allegations contained in paragraph 6 of the plaint were not traversed by the appellants and should therefore be deemed to have been admitted. No objection was raised to the learned Trial Judge raising an issue on the matters stated in paragraph 6 of the plaint. We do not think that the respondent should have been permitted in these circumstances to raise for the first time in the appeal the contention that a part of his claim must be deemed to have been admitted for the reason that it was not traversed in in the written statement.
### Response:
1
### Explanation:
It is true that none of the paragraphs of the written statement refers expressly or numerically to paragraph 6 of the plaints but that is a matter of form and not of substance. The various averments contained in paragraphs 5 and 7 to 10 of the written statement are specifically directed at the averments made in paragraph 6 of the plaint. The case made out by the respondent in paragraph 6 of the plaint is that the appellants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras cargo without any valid reason. The appellants have given specific and elaborate reasons as to why it became necessary to load Nagapattinam cargo before completing the loading of the Madras cargo.We are unable to understand how, in view of these averments in the written statement, it can be said that the allegations made by the respondent in paragraph 6 of the plaint have not been traversed by the appellants. We are of the opinion that those allegations have been fully and effectively traversed by the appellants and therefore the learned Trial Judge was justified in disposing of the suit on the basis of the issues framed by him in the suit.9. We might mention that thedid not contend in the trial Court, that the allegations contained in paragraph 6 of the plaint were not traversed by the appellants and should therefore be deemed to have been admitted. No objection was raised to the learned Trial Judge raising an issue on the matters stated in paragraph 6 of the plaint. We do not think that the respondent should have been permitted in these circumstances to raise for the first time in the appeal the contention that a part of his claim must be deemed to have been admitted for the reason that it was not traversed in in the written statement.
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P. M. Mohammad Meerakhan Vs. Commissioner Of Income-Tax, Ernakulam | It was then contended on behalf of the appellant that even assuming that there was an adventure in the nature of trade, the profits from such an adventure have not been properly ascertained in the present case. It was said that the Income-tax authorities were wrong in holding that the value of the 23rd plot retained by the assessee represented the profit made in the transaction.The argument was that the adventure would terminate after the portion retained by the appellant was also sold and therefore the profits in the adventure could be determing only at the time of the completion of the sale of the entire estate.In our opinion, there is no justification for this argument. It is not a correct proposition to say that the profits of the assessee cannot be ascertained even on the assumption that the transaction of the adventure of trade was not completed.Under the Income-tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading adventure the profits have to be computed in the manner provided by the statute.It is true that the Income-tax Act makes no express provision with regard to the value of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it was the duty of the Income-tax Officer to find out what profit the business has made according to the ture accountancy practice. As a normal rule, the profit should be ascertained by valuing the stock-trade at the beginning and at the end of the accounting year. In Whimster and Co. v. Commissioner of Inland Revenue, (1926) 12 Tax Cas 813 Lord President Clyde observed at page 823 :"In computing the balance of profits and gains or the purposes of income-tax .. . . two general and fundamental commonplaces have always to be kept in mind. In the first place, the profits of any particular year or accounting period must be taken to consist of the difference between the receipts from the trade or business during such year or accounting period and the expenditure laid out to earn those receipts. In the second place, the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of the Income-tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be. For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchants or manufacturers business the values of the stock-in-trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower although there is nothing about this in the taxing statutes."In Commissioners of Inland Revenue v. Cock, Russell and Co. Ltd, (1949) 29 Tax Cas 387 Croom-Johnson, J. in dealing with valuation of stock-in-trade for purposes of taxation stated as follows :-There is no word in the statutes or rules which deals with this question of valuing stock-in-trade. There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock-in-trade at the start of the accounting period should be taken in and that the amount of the stock-in-trade at the end of the period should also be taken in. It would be fantastic not to do it: it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover. It has long been recognised that the right method of assessing profits and gains is to take into account the value of the stock-in-trade at the beginning and the value of the stock-in-trade at the end as two of the items in the computation. I need not cite authority for the general proposition which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes."In Commissioner of Income-tax, Madras v. A. Krishnaswami Mudaliar, 1964-53 ITR 122 =(AIR 1964 SC 1843 ) it was observed by this Court that whichever method of book-keeping was adopted in the case of a trading venture for computing the true profits of the year the stock-in-trade must be taken into account. At page 132 of the report Shah, J., speaking or the Court stated the principle as follows:"These observations do not affect the true character of the profit of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that, in the case of a trading venture you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an out-going; for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account."In view of this principle we are of the opinion that the Income-tax Authorities have correctly estimated the profit of the assessee by treating the land as stock-in-trade and valuing it according to the normal accountancy practice. | 1[ds]3. The question whether a transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant facts and circumstances which are proved in the particular case. The answer to the question does not depend upon the application of any abstract rule or principle or formula but must depend upon the total impression and effect of all the relevant facts and circumstances established in the particularour opinion, there is no justification for this argument. It is not a correct proposition to say that the profits of the assessee cannot be ascertained even on the assumption that the transaction of the adventure of trade was not completed.Under the Income-tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading adventure the profits have to be computed in the manner provided by the statute.It is true that the Income-tax Act makes no express provision with regard to the value of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it was the duty of the Income-tax Officer to find out what profit the business has made according to the ture accountancy practice. As a normal rule, the profit should be ascertained by valuing the stock-trade at the beginning and at the end of the accountingview of this principle we are of the opinion that the Income-tax Authorities have correctly estimated the profit of the assessee by treating the land as stock-in-trade and valuing it according to the normal accountancy practice.5. As we have already said it is not possible to evolve any single legal test or formula which can be applied in deterture in the nature a transaction is an adventure in the nature of trade or not. The answer to the question must necessarily depend in each case on the total impression and effect of all the relevant factors and circumstances proved therein and which determine the character of the transaction. What then are the material facts found in the present case?6. It is clear from the recital of the agreement dated 15th October (August?), 1955 that the intention of the assessee in purchasing the estate was to resell it at a profit. An advance of Rs. 11,000 was paid by the assessee on that date, the balance of Rs. 5,89,000 was to be paid on or before 25th September, 1955. It was one of the terms of the agreement that Mr. A. V. George was to execute the sale deed either favour of the assessee or his nominees. It was also found that the assessee did not have the resources to buy any estate worth a lakh rupees when he entered into the agreement for the purchase of Kutikal Estate for an amount of Rs. 6 lakhs. In the intervening period between 15th August, 1955 and 31st March, 1956, the assessee divided the estate into 23 plots and arranged for the sale of 22 plots to different purchasers. The division of the land into 23 plots and the sale to the various purchasers indicate that the was scheming and organisation on the part of the assessee. It was found that the assessee did not have the means and resources to cultivate the land himself and that he had arranged for the sale of 22 plots to different purchasers. Having regard to the total effect of all these circumstances we are of the opinion that the High Court was right in its conclusion thatthe transactions of the assessee constituted an adventure in the nature of trade and were in the course of a profit making scheme and the question was rightly answered by the High Court against the assessee. | 1 | 4,115 | 703 | ### 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:
It was then contended on behalf of the appellant that even assuming that there was an adventure in the nature of trade, the profits from such an adventure have not been properly ascertained in the present case. It was said that the Income-tax authorities were wrong in holding that the value of the 23rd plot retained by the assessee represented the profit made in the transaction.The argument was that the adventure would terminate after the portion retained by the appellant was also sold and therefore the profits in the adventure could be determing only at the time of the completion of the sale of the entire estate.In our opinion, there is no justification for this argument. It is not a correct proposition to say that the profits of the assessee cannot be ascertained even on the assumption that the transaction of the adventure of trade was not completed.Under the Income-tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading adventure the profits have to be computed in the manner provided by the statute.It is true that the Income-tax Act makes no express provision with regard to the value of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it was the duty of the Income-tax Officer to find out what profit the business has made according to the ture accountancy practice. As a normal rule, the profit should be ascertained by valuing the stock-trade at the beginning and at the end of the accounting year. In Whimster and Co. v. Commissioner of Inland Revenue, (1926) 12 Tax Cas 813 Lord President Clyde observed at page 823 :"In computing the balance of profits and gains or the purposes of income-tax .. . . two general and fundamental commonplaces have always to be kept in mind. In the first place, the profits of any particular year or accounting period must be taken to consist of the difference between the receipts from the trade or business during such year or accounting period and the expenditure laid out to earn those receipts. In the second place, the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of the Income-tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be. For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchants or manufacturers business the values of the stock-in-trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower although there is nothing about this in the taxing statutes."In Commissioners of Inland Revenue v. Cock, Russell and Co. Ltd, (1949) 29 Tax Cas 387 Croom-Johnson, J. in dealing with valuation of stock-in-trade for purposes of taxation stated as follows :-There is no word in the statutes or rules which deals with this question of valuing stock-in-trade. There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock-in-trade at the start of the accounting period should be taken in and that the amount of the stock-in-trade at the end of the period should also be taken in. It would be fantastic not to do it: it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover. It has long been recognised that the right method of assessing profits and gains is to take into account the value of the stock-in-trade at the beginning and the value of the stock-in-trade at the end as two of the items in the computation. I need not cite authority for the general proposition which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes."In Commissioner of Income-tax, Madras v. A. Krishnaswami Mudaliar, 1964-53 ITR 122 =(AIR 1964 SC 1843 ) it was observed by this Court that whichever method of book-keeping was adopted in the case of a trading venture for computing the true profits of the year the stock-in-trade must be taken into account. At page 132 of the report Shah, J., speaking or the Court stated the principle as follows:"These observations do not affect the true character of the profit of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that, in the case of a trading venture you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an out-going; for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account."In view of this principle we are of the opinion that the Income-tax Authorities have correctly estimated the profit of the assessee by treating the land as stock-in-trade and valuing it according to the normal accountancy practice.
### Response:
1
### Explanation:
3. The question whether a transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant facts and circumstances which are proved in the particular case. The answer to the question does not depend upon the application of any abstract rule or principle or formula but must depend upon the total impression and effect of all the relevant facts and circumstances established in the particularour opinion, there is no justification for this argument. It is not a correct proposition to say that the profits of the assessee cannot be ascertained even on the assumption that the transaction of the adventure of trade was not completed.Under the Income-tax Act for the purpose of assessment each year is a self-contained unit and in the case of a trading adventure the profits have to be computed in the manner provided by the statute.It is true that the Income-tax Act makes no express provision with regard to the value of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading adventure the profits have to be calculated and adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it was the duty of the Income-tax Officer to find out what profit the business has made according to the ture accountancy practice. As a normal rule, the profit should be ascertained by valuing the stock-trade at the beginning and at the end of the accountingview of this principle we are of the opinion that the Income-tax Authorities have correctly estimated the profit of the assessee by treating the land as stock-in-trade and valuing it according to the normal accountancy practice.5. As we have already said it is not possible to evolve any single legal test or formula which can be applied in deterture in the nature a transaction is an adventure in the nature of trade or not. The answer to the question must necessarily depend in each case on the total impression and effect of all the relevant factors and circumstances proved therein and which determine the character of the transaction. What then are the material facts found in the present case?6. It is clear from the recital of the agreement dated 15th October (August?), 1955 that the intention of the assessee in purchasing the estate was to resell it at a profit. An advance of Rs. 11,000 was paid by the assessee on that date, the balance of Rs. 5,89,000 was to be paid on or before 25th September, 1955. It was one of the terms of the agreement that Mr. A. V. George was to execute the sale deed either favour of the assessee or his nominees. It was also found that the assessee did not have the resources to buy any estate worth a lakh rupees when he entered into the agreement for the purchase of Kutikal Estate for an amount of Rs. 6 lakhs. In the intervening period between 15th August, 1955 and 31st March, 1956, the assessee divided the estate into 23 plots and arranged for the sale of 22 plots to different purchasers. The division of the land into 23 plots and the sale to the various purchasers indicate that the was scheming and organisation on the part of the assessee. It was found that the assessee did not have the means and resources to cultivate the land himself and that he had arranged for the sale of 22 plots to different purchasers. Having regard to the total effect of all these circumstances we are of the opinion that the High Court was right in its conclusion thatthe transactions of the assessee constituted an adventure in the nature of trade and were in the course of a profit making scheme and the question was rightly answered by the High Court against the assessee.
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ASSISTANT GENERAL MANAGER STATE BANK OF INDIA & ORS Vs. RADHEY SHYAM PANDEY | In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the Scheme, and the Pension Regulations, therefore, has to be given. 37. The amendment to Regulation 28 can, at best, be said to have been intended to cover the employees with 15 years of service or more but less than 20 years of service. This intention is reflected from the communication dated 5-9-2000 sent by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) to the Personnel Advisor, Indian Banks Association. (emphasis supplied) It opined that the amendment to Regulation 28 of 1995 Regulation intended to cover 15 years of service, i.e., employees with 15 years of service who have not completed 20 years of service. A similar action to amend the Rule was required to be taken by the SBI, but it failed to take it after having floated a similar scheme. It kept it uncertain what would be the position of the rule as on the appointed date, i.e., 31.3.2001. Be that as it may. But it was crystal clear that the incumbent with 15 years of service was eligible for the benefit as provided in the scheme itself. The benefit clause has to be read with the eligibility criteria. Once VRS was formulated and adopted by the SBI in toto, it constituted a complete contractual package in itself. 62. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong. 63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair manner. The concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed : 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33). This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme. | 0[ds]So, it assumes significance that what was approved and conveyed, in terms of the IBA scheme, the Banks Boards were permitted to specify any other category as ineligible. The SBI considering its requirement proposed to exclude the Watch and Ward staff as these positions could not be reduced. It was also proposed to exclude the highly skilled and qualified staff from the scheme18. IBAs letter dated 31.8.2000 makes clear the salient features of the VRS scheme that all permanent employees with 15 years of service were eligible to retire. Ineligible persons have also been specified. In unqualified terms, it was mentioned in the annexures that such employees would be entitled to the amount of ex gratia of 60 days salary for each completed year of service or salary for the number of months service is left, whichever is less. Other benefits admissible were gratuity, pension including the commuted value of pension, banks contribution towards provident fund, and leave encashment as per rules. Thus, scheme was to grant pension to all such employees who opted for VRS on completion of 15 years of service and other benefits as specified in the scheme. The Government of India, Ministry of Finance, Department of Economic Affairs, (Banking Division), that it communicated approval vide letter dated 29.8.2000 to IBA, it was sent to the SBI also21. Most significantly, the scheme of the IBA, accepted by the Board on 27.12.2000, was for providing pension on completion of 15 years of service. The pension specified in clause 6 of scheme was to be worked out in terms of the Pension Fund Rules including the commuted value of the pension. It was not mentioned in the VRS adopted by the SBI that the person on completion of 15 years would not be entitled to the benefit of pension. On the other hand, proposal of IBA, as approved by the Government of India, was accepted in toto by SBI. When gauged in terms of the proposals of the IBA, the essential feature was that an employee was entitled to get pension on completion of 15 years of service. The meaning of the expression pension in terms of the rules would be proportionate pension on completion of 15 years of service as per the terms of calculation provided in Rule 23 of the Pension Rules. VRS is an independent contract and the background in which it was floated, pension on completion of 15 years of service was an essential part of the scheme of VRS 2000, as approved by the Government and floated by the IBA and adopted by all the Banks, and Pension Rules were to be amended accordinglyIt is clear from answer that the staff circular dated 30.12.2000 was reiterated. Payment of pension to an employee retiring under VRS would be governed by rules on the relevant date, i.e., 31.3.2001. At the same time, the position of the existing rule was indicated that those employees who had not completed 20 years of pensionable service were not eligible for a pension. It was not clarified what was the meaning and purport of para 6(c) of the scheme. It was not mentioned that an employee would not be entitled to pension on 15 years of service as per the scheme approved by the Government of India and floated by the IBA and adopted by the Central Board of SBI. The above clarification being in form of opinion, could not be said to have caused a modification, amendment, or cancellation of any of the clauses of VRS or resolution passed by the Board, nor it was so stated. It was necessary to state that on completion of 15 years of service, employees would not be paid pension. The existing rule position was known to everybody, whereas the scheme was framed for providing pension on completion of 15 years of service39. In our opinion, the reference in the SBI VRS to the admissible benefits, like pension shall be as per the pension rules, was for the purpose of computation of pension. It is apparent from a reading of the scheme that proportionate pension was admissible to employees as noted in para 49 of O.P. Swarnakar & Ors. (supra). A similar expression was used in the schemes of nationalised banks also. This Court has noted expression in the scheme that pension as per rules to mean for computation of pension. The formula for computation for a pension is provided in Rule 23 of the SBI Pension Rules40. It is of utmost significance that the Central Board in its meeting dated 27.12.2000 accorded approval for the proposals contained in the Memorandum. A bare perusal of the memorandum makes it clear that the letter of IBA dated 31.8.2000 was enclosed as part of the memorandum submitted to the Central Board. In the memorandum, it was mentioned that the Government of India conveyed that they had no objection to the banks placing before their respective Boards of Directors proposals for adopting and implementing the Voluntary Retirement Scheme. It advised that Banks may adopt the scheme after obtaining their Boards approval and implement it in right earnest. The memorandum also contained that the employees who completed 15 years of service were to be the beneficiaries of VRS as approved by the Government of India and conveyed by the IBA. The approval by Government of India and scheme, conveyed by IBA, was to provide for the benefit of pension on completion of 15 years of service. The same was an essential condition of the scheme. The Annexure, which was part of the memorandum, provided inter alia the benefit of pension, including the commuted value of pension without any rider of completion of 20 years period of service. Once SBI accepted the proposals contained in the memorandum, when we gauge the scheme in the light of the subject matter of the memorandum which was unconditionally approved, it became clear and beyond the pale of doubt that in VRS (Annexure B) inasmuch as the expression to provide the benefit of pension as per rules was only for providing the proportionate pensionary benefit of the qualifying service on and above 15 years, rendered by an employee41. The IBA advised the banks for amending the rules. The Government of India, Ministry of Finance, also issued a letter dated 5.9.2001 to the Bank to amend the rules. There was a proposal to amend the rules. After the scheme was implemented in 2000, the nationalised banks, including the Punjab National Bank, amended their rules in 2002 with retrospective effect. However, the fact remains the VRS schemes were implemented by banks governed by the Banking Companies Act, 1970, by making payment of pension though Regulation 28 of Regulation of 1995 provided for 20 years of qualifying service at the relevant time. Once a particular scheme of VRS, based on the recommendations of Committee formed by Government of India, was formulated and floated by IBA. In all fairness, it was required to be implemented in right earnest in that form in which it was approved and adopted by the Board of Directors of SBI on 27.12.2000. In case the Board of Directors were of the opinion that the scheme was not acceptable to them, they could have rejected it or could have stated they reject the proposal for paying pension on completion of 15 years of service which was the essence of a scheme formed to reduce workforce of Bank and for achieving other objectives. Nonetheless, on the contrary, resolution dated 27.12.2000 indicates that the proposals of IBA/Government was approved unconditionally. Thus, in case it was so necessary to amend the pension rules as done by other banks, it was incumbent upon the State Bank of India to amend its rules either after implementation of the scheme as was done by other banks or before giving effect to VRS42. It is also significant to mention that SBI accepted the scheme as approved by the Government and floated by IBA. In case SBI had declined to accept or wanted to modify, it was necessary for it to take approval of Government of India as to its scheme43. Thus, it is apparent that the Central Board of SBI could not have framed a scheme different than the one approved by the Central Government on its own, nor could have implemented it without approval of the Central Government. In case it wanted to modify or amend the scheme, as approved by the Government of India, it was incumbent upon it to send its modified scheme to the Central Government for approval. No scheme for VRS could have been framed without approval of the Government of India. In fact, the Central Board accepted the proposal of IBA, as approved by the Government of India. In case SBIs stand is accepted, its scheme would have been valid as no modification could have been made without approval of the Government of India. In fact, no such modification was made, as held above44. Once it approved the Scheme SBI being an instrumentality of State under Article 12, is bound by the principle of fairness and representation made that it accepted the contents of memorandum and the scheme floated by IBA and invited the applications based on approving the memorandum which contained proposal of pension on rendering 15 years of permanent pensionable service, it could not later on wriggle out of its obligation taking a rigmarole by claiming shelter of the Rules or by not amending the Rules or by issuing a clarification which was fanciful, irrational and contrary to the spirit of the resolution of the Board. It would amount to an unfair and unreasonable action to deprive the employees of the benefit of pension because of the decision taken by the Central Board of Directors45. SBI is bound by resolution of Central Board of Directors. The Scheme was with the approval of the Government of India and accepted, implemented by all the banks in true spirit except by SBI. It cannot be permitted to act unfairly by virtue of having superior bargaining power by issuing vague clarification to the detriment of the economic interest of the employees. Clarification did not have the effect of re-writing or superseding the resolution of the Central Board nor effect of making modifications in the resolution passed by the Central Board of the SBI46. The VRS scheme was not floated by the SBI on its own volition. It was pursuant to an exercise that was undertaken by the IBA in view of the recent developments of modern technology considering the age group of the employees in the bank, the need to have a new skill, and to rationalise the manpower; a decision was taken. It was decided at the Government level to provide pension after completion of 15 years of service as a special measure, the banks were bound to implement it in that manner or not at all. The Central Board of Directors of the SBI accepted the VRS proposal of Government and IBA without any reservation of not providing pension along with other benefits, as mandated in the VRS scheme. The action of the instrumentality of the State cannot be violative of Article 14. It cannot be permitted to act arbitrarily. Articles 15 and 16 provide for equality and provide for an umbrella against discrimination47. Though the Deputy General Manager was authorised by the Central Board of Directors to amend, modify or cancel the VRS. The Rules were amended by other banks later in 2002. It was not stated in answer to the query that under the VRS scheme, a person who has rendered 15 years of qualifying service would not be entitled to a pension. Nor it was so stated in resolution dated 27.12.2000 of the Central Board of SBI. That apart, Deputy General Manager tried to interpret VRS scheme in isolation without considering what was approved by the Board. Not only the scheme but also the memorandum have to be read together to understand resolution of Board. Once the memorandum containing the IBAs proposal of providing pension was approved in absolute terms, the clarification could not be of any value to dilute the otherwise clear and unambiguous resolution of the Board of Directors. The Deputy General Manager did not have any such wide and arbitrary power to defeat the claim of the employees for pension on completion of 15 years of permanent service, which was their right. The action of D.G.M. could not be said to be in accordance with the resolution. The pension was the essence of the scheme, depriving it could not be said to be authorised, such action can only be termed as unfair and unreasonable and patently violative of Articles 14, 16, and 21 of the Constitution of India48. Yet another aspect which cannot be lost sight is that the bank mentioned in the scheme that the benefit would be admissible as per the rule which prevails on the appointed day, i.e., 31.3.2001. Thus, it is apparent that when VRS scheme was floated, it was in contemplation of amendment of rules which was suggested by the IBA and the Government of India in its communication dated 5.9.2001 so that employees were not deprived of the benefit of pension49. The question arises in case the bank accepts the proposal of VRS, and does not alter its rules, can employees be deprived of the benefit of pension in such an unconscionable manner over an event on which they had no control.It would be nothing, but an outcome of unfair and arbitrary act in case the SBI never intended to act upon the scheme it ought not to have accepted it, and once it approved VRS, it was incumbent upon it to amend its rule, if necessary, as was done by other banks in 2002 after scheme worked out in the year 2000. Even otherwise once it accepted the proposal of the Government of India, it would be violative of provisions of Articles 14 and 16 to permit it to wriggle out of its obligation under the guise that the bank did not amend its rules or pension was not admissible as per existing rules, mainly when the scheme provided for eligibility for pension on completion of 15 years, that formed independent contract. If the bank is permitted to get rid of the scheme due to Rule position, then the scheme itself would become void and unenforceable. Bank cannot act in a fanciful manner, particularly with respect to retirement under VRS which was contractual and deny benefit of pension, a right accrued to the employees for receiving the pension in view of the memorandum and the resolution passed by the Central Board of Directors adopting memorandum and the SBI-VRS53. On the basis of aforesaid principles, it is apparent that once the Central Board of Directors accepted the memorandum for making payment of pension, in case it was not accepting the proposal in the memorandum, it ought to have said clearly that it was not ready to accept the proposals of the Government and the IBA and rejects the same. Once it approved the proposals referred to in the memorandum, which were on the basis of IBAs letter and Government of Indias decision it was bound to implement it in true letter and spirit. By accepting the same, binding obligation was created upon the SBI to make payment of pension on completion of 15 years of service. It cannot invalidate its own decision by relying on fact it failed to amend the rule, whereas other Banks did it later on with retrospective effect. They cannot invalidate otherwise valid decision by virtue of exclusive superior power to amend or not to amend the rule and act unfairly and make the entire contract unreasonable based on misrepresentation. It was open to the Board of Directors to reject the proposal. Once it accepted the proposal to make payment of pension on completion of 15 years of service as proposed in the memorandum, though the scheme is tried to be interpreted by the SBI that pension was to be admissible as provided in the rule that refers to proportionate pension as noted by this Court in O.P. Swarnakar & Ors., (supra), and what was decided by Government of India/IBA, was not taken away rather adopted by the Central Board of Directors. The scheme of contractual nature has to be read in the context and in the backdrop of facts and what has been resolved by the Board of Directors. There is no ambiguity with respect to the admissibility of pension when the memorandum and the scheme are read together. In case of ambiguity and even if two interpretations are possible in the backdrop of facts of the case, one in favour of the employees has to be adopted and so-called clarification dated 11.1.2000 even if considered in the manner so as to deny the benefit of pension, has to be held to be unenforceable, illegal and contrary to law54. It is apparent from the eligibility clause of the VRS scheme that eligibility is provided for the employees having 15 years of pensionable service and they will be entitled for benefits as provided in the scheme. The eligibility clause, when read with clauses providing the benefit, i.e., clauses 5 and 6 of the scheme, leaves no room for any doubt and makes it clear that employees with 15 years of service were treated as eligible to claim the benefit of the scheme floated by SBI. It was not the provision in the VRS scheme that incumbents having completed 20 years of service would be entitled for pensionary benefits. The scheme was carved out specially for attracting the employees by providing pension and other benefits to eligible persons like ex gratia, gratuity, pension and leave encashment. Deprivation of pension would make them ineligible for the benefits and would run repugnant to the eligibility clause55. The submission raised on behalf of the SBI that the draft scheme nowhere stipulated that 15 years service would be the eligibility or that on completion of 15 years service, the incumbent would be eligible for pension, is factually incorrect. It is apparent from the material circumstances, documents, and correspondence that the decision was taken at all levels including the one by the Central Board of Directors of SBI, that the benefit of pension was to be given to the employees on completion of 15 years of service. In that perspective, vagueness of scheme of SBI, if any, can be of no advantage as it is clear beyond the pale of doubt that pension was heart and soul of the scheme with ex gratia on completion of 15 years of service. It is due to the reason that the benefit was to be accorded to the incumbents having completed 15 years of service, Regulation 28 as applicable to other nationalised banks was proposed to be modified as reflected in the letter of IBA dated 11.12.2000 and Government of India letter dated 5.9.2000. Later on, the regulation was amended in 2002 after the scheme had already been implemented in right earnest. There was not even an iota of doubt that VRS was to give benefits to all eligible employees having completed 15 years of service. It was apparent from the letter dated 29.12.2000 of SBI that the guidelines of IBA were approved by the Central Board of Directors in its meeting dated 27.12.200062. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair mannerThe concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed :20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33)This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme | 0 | 28,682 | 4,326 | ### 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:
In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the Scheme, and the Pension Regulations, therefore, has to be given. 37. The amendment to Regulation 28 can, at best, be said to have been intended to cover the employees with 15 years of service or more but less than 20 years of service. This intention is reflected from the communication dated 5-9-2000 sent by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) to the Personnel Advisor, Indian Banks Association. (emphasis supplied) It opined that the amendment to Regulation 28 of 1995 Regulation intended to cover 15 years of service, i.e., employees with 15 years of service who have not completed 20 years of service. A similar action to amend the Rule was required to be taken by the SBI, but it failed to take it after having floated a similar scheme. It kept it uncertain what would be the position of the rule as on the appointed date, i.e., 31.3.2001. Be that as it may. But it was crystal clear that the incumbent with 15 years of service was eligible for the benefit as provided in the scheme itself. The benefit clause has to be read with the eligibility criteria. Once VRS was formulated and adopted by the SBI in toto, it constituted a complete contractual package in itself. 62. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong. 63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair manner. The concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed : 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33). This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme.
### Response:
0
### Explanation:
stipulated that 15 years service would be the eligibility or that on completion of 15 years service, the incumbent would be eligible for pension, is factually incorrect. It is apparent from the material circumstances, documents, and correspondence that the decision was taken at all levels including the one by the Central Board of Directors of SBI, that the benefit of pension was to be given to the employees on completion of 15 years of service. In that perspective, vagueness of scheme of SBI, if any, can be of no advantage as it is clear beyond the pale of doubt that pension was heart and soul of the scheme with ex gratia on completion of 15 years of service. It is due to the reason that the benefit was to be accorded to the incumbents having completed 15 years of service, Regulation 28 as applicable to other nationalised banks was proposed to be modified as reflected in the letter of IBA dated 11.12.2000 and Government of India letter dated 5.9.2000. Later on, the regulation was amended in 2002 after the scheme had already been implemented in right earnest. There was not even an iota of doubt that VRS was to give benefits to all eligible employees having completed 15 years of service. It was apparent from the letter dated 29.12.2000 of SBI that the guidelines of IBA were approved by the Central Board of Directors in its meeting dated 27.12.200062. As urged on behalf of SBI if section 23 of the Contract Act is applied, then how it is helpful to the bank, is not understandable. In case it is held that the very scheme was opposed to the law/rules, the entire scheme would fall down. Once it adopted the scheme, invited applications and the employees acted upon it and retired on the basis of the scheme, they cannot be left in lurch. In case its submission is accepted, the Scheme becomes violative of Section 23 of Contact Act, the bank would have to suffer the consequences of striking down of the very scheme and would be required to reinstate the employees and to pay them the salary and other benefits. However, SBI accepted the scheme, it was incumbent upon it to bring the rules in consonance with the similar VRS scheme as was done by other banks. The SBI accepted the scheme on 27.12.2000 without any ifs and buts. Thus, the anomaly was the outcome of the banks inaction to propose and make amendment of rules. In such a scenario, the action of SBI is violative of Articles 14, 16 and 21 of the Constitution. The situation created by itself is not going to benefit the bank to lend support to arbitrary action. The bank was bound to extend the benefits by amending the rules, if necessary, to salvage the situation for itself. Breach of law has been committed by the SBI itself, its action is arbitrary and it cannot be permitted to take advantage of its own wrong63. The pension cannot be dealt with arbitrarily and cannot be denied in an unfair mannerThe concept of pension was considered in D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305 . The right to a pension can be enforced through the court, it observed :20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system, therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleakney, p. 33)This Court observed that the principal aim of the socialist State as envisaged in the Preamble is to eliminate inequality. The basic framework of socialism is to provide security in the fall of life to the working people and especially provides security from the cradle to the grave when employees have rendered service in heydays of life, they cannot be destituted in old age, by taking action in an arbitrary manner and for omission to complete obligation assured one. Though there cannot be estoppel against the law but when a bank had the power to amend it, it cannot take shelter of its own inaction and SBI ought to have followed the pursuit of other banks and was required to act in a similar fair manner having accepted the scheme
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M/S. Peacock Plywood Pvt. Ltd Vs. The Oriental Insurance Co. Ltd | as to whether the sale would go through at Singapore or in Calcutta by its letter dated 12th August, 1989 which was marked as Ex. S, relevant portion whereof reads as under: "Local Sale in Singapore" "On Solicitors request the Court has given permission to dispose off the cargo in order to minimize the loss in view of the deterioration in quality of material. Accordingly, the Solicitors appointed M/s. Toplings, Recovery Agent, who advertised the sale in newspapers and the best offer received for the cargo consisting of 2300 CBM now lying over there is U.S. $ 85,000. Out of this our share comes as under:Total value offered for 2300 CBM = US$ 85,000.Therefore, our shoare 85000 x 2057.73/ 2300 = US$ 76,046.54US$ 76,046.54 x Rs. 16.90 = Rs. 12,85,166.50Whereas we have already paid Rs. 12,85,166.50 towards the consignment of 296 logs measuring 1268.99 CBM under the L/C and US $ 1,18,416/- is still payable to the shipper against the documents for 178 Logs measuring 789.74 CBM received under the D.A. Thus, there is a loss of around over 30 lakhs while disposing the entire consignment in Singapore.To bring the Cargo to Calcutta for Sale in India:To bring the cargo from Singapore to Calcutta for sale in India, the position will be as under:a) Expenditure to be borne by insurance co. towards freight and other charges like loading into ship etc. at Singapore i.e. US $75/- per CBM i.e. 2057.73 CBM x US $ 75$1,54,329.75 x Rs. 16.90 = Rs. 26,08,172.77b) Expenditure to be borne by us towards Duty and clearing expenses i.e. Rs. 721/- CBM i.e. 2057.73 CBM x Rs. 721/- per CBM comes = Rs. 14,83,623.30Total = Rs. 40,91,796.07The best price that we can get for the said Cargo in Calcutta is Rs. 1942/- per CBM. Therefore, the total sale realization will be as under:2057.73 x Rs. 1942 = Per CBM Rs. 39,95,700/-" 66. In that view of the matter, Respondent was held to be entitled to get credit thereof. Clause 13 of the insurance policy was, thus, clearly attracted. 67. Reliance has strongly been placed on a decision of this Court in Bihar Supply Syndicate v. Asiatic Navigation and Others [(1993) 2 SCC 639 : AIR 1993 SC 2054 ] wherein this Court was dealing with a different fact situation. In that case, the vessel in question was diverted to Vishakhapatnam along with cargo where the repairs of the vessel were expected to be completed. The vessel was, however, not repaired nor the wages of the crew members were paid as a result whereof the ship was directed to be arrested. It was in the aforementioned fact situation opined: "It is thus clear, after knowing the fact, that we are dealing with a Marine Insurance Policy with Institute Cargo Clauses (FPA) attached against the Insurance Company, it is the duty of the plaintiff to prove as a fact that the cargo was lost due to perils of the sea. Since the finding of the High Court is that no sea water entered in the engine room and the fact that the cargo was intact even after the ship was towed to Vishakhapatnam showed that no sea water entered the ship and, therefore, the loss to the plaintiff was not on account of perils of the sea and the suit of the plaintiff against the Insurance Company i.e. defendant 4 was rightly dismissed by the High Court." 68. The said decision cannot be said to have any application in this case in view of the extended terms of policy. Non-delivery of goods may be on any account. It need not always be a case of reasonably abandoned. The meaning of the expression peril insured against would depend upon the terms of the policy. The policy was extended to a case where the costs of transportation would be more than the value of the goods. Marine Insurance Act is subject to the terms of insurance policy. Where the insurer takes additional premium and insure a higher risk, no restrictive meaning thereto need be given. A term of the policy must be given its effect. While construing a contract of insurance, the reason for entering thereinto and the risks sought to be covered must be considered on its own terms.69. When the entire case is based on a construction of insurance policy, the question of adduction of any oral evidence would be irrelevant particularly when the learned Single Judge gave due credit of the amount received on auction of the goods under the orders of the Singapore Court. The value of the cargo was known. It is not a disputed amount. Thus, whatever has been recovered by way of sale of the said logs, the same has to be credited for and Appellant should be held entitled only to the balance amount.70. What would, thus, be the meaning of the word possession under Sub-section (2) of Section 60 of the Marine Insurance Act read with Clause 13 of the policy? It is not the case of any of the parties that Appellant was given actual possession of the goods. Unseaworthiness of vessel due to which it became stranded as a result whereof the goods could not be delivered to Appellant, in our opinion, would come within the meaning of the expression "peril insured against".71. This leaves us to the question as to whether the exclusionary clauses contained in the insurance policy are attracted. Respondent in its written statement did not raise such a contention. It was required to be specifically pleaded and proved by Respondent. The burden to prove the applicability of exclusionary clauses was on Respondent. Neither any issue has been raised, nor any evidence has been adduced in this behalf. It is also not a case that the servants of the assured were privy to the unseaworthiness as provided for in Clause 5.5.1 of the insurance policy. There has been no evidence to that effect. Even the said provision has not been applied by the learned Single Judge. | 1[ds]34. From a perusal of the said letter, it is evident that the only ground on which the claim of Appellant was not accepted was that the question of any Non-delivery" did not arise as the cargo had been in existence. Other contentions of Appellant in the said letter had not been repudiated.We have noticed hereinbefore that indisputably Appellant on its own as also at the behest of Respondent took steps for realisation of cargo to the extent possible. It moved the Singapore High Court for sale of the cargo. It had also opposed the prayer of arrest of ship before a Malaysian Court. Respondent itself contended that Appellant made a pre-mature claim of constructive total loss. Having said so, it could not have raised a plea of limitation.There had been no repudiation even at that stage. It was only when the ship could not leave the Singapore Port due to unseaworthiness, a claim of constructive total loss was made. Terms of the policy would indisputably have to be invoked for determining the rival clauses. But, it is one thing to say that the claim was barred by limitation or the exclusionary clauses would apply; but it is another thing to say that the question of invoking the said clause did not arise in terms of the contract of insurance.41. Only because the expression "without prejudice" was mentioned, the same, in our opinion, by itself was not sufficient and would not curtail the right of the insured to which it was otherwise entitled to. The expression "without prejudice" may have to be construed in the context in which it is used. If the purpose for which it is used is accomplished, no legitimate claim can be allowed to be defeated thereby.When the termination of the contract of insurance has actually taken place is essentially a question of fact. An insurance policy is to be construed in its entirety. A marine insurance policy does not come to an end only because the ship became stranded at a port.None of the aforementioned clauses are attracted in the facts and circumstances of the present case.The Division Bench of the High Court committed an error in holding that the insurance policy stood terminated after June/ July, 1988 in terms of clause 9 of the policy when the contract of carriage had terminated on account of the unseaworthiness of the ship. Even Respondent had not made out any case to the said effect in the pleadings. If the contract of insurance did not terminate on its own, as was wrongly opined by the Division Bench of the High Court, the question of any request for its extension did not arise.49. Undoubtedly, the contract of insurance was covered under Institute Cargo Clause (C). However, it included expressly the risk of non-delivery of even single piece of log. It included the risk of the vessel or craft being stranded or grounded. It also included the risk of institute theft pilferage and non-delivery.50. Yet again on 2nd March, 1988 and 11th March, 1988, evidently, the scope of aforesaid policy was enlarged pursuant whereto or in furtherance whereof further endorsements were made by paying additional premium, in terms whereof the risk of non-delivery was specifically covered. It will bear repetition to state that the vessel could not proceed from Singapore owing to its unseaworthiness. It was, thus, covered by the terms of the extended terms of insurance policy. The Division Bench failed to consider this aspect of the matter.If the ship was stranded at Singapore and goods were offloaded from it, Appellant must be held to have discharged its burden. Findings of fact were arrived at by the learned Single Judge on the basis of the pleadings of the parties. If a clause of Marine Insurance policy covers a broad fact, in our opinion, it would be inequitable to deny the insured to raise a plea particularly when the insurer being a State within the meaning of Article 12 of the Constitution of India is expected to act fairly and reasonably. The purport and object for which goods are insured must be given full effect. In a case of ambiguity, the construction of an insurance policy should be made in favour of the insured and not insurer.The likelihood of recovery must be judged in the light of the probabilities as they would have appeared to a reasonable assured at the moment when he knew of his loss and could have given notice of abandonment. The former rule of law that a frustration of the venture by an insured peril gives rise to a constructive total loss under a voyage policy on goods, although the goods themselves are not damages, has not been altered. [See RickardsIn that view of the matter, Respondent was held to be entitled to get credit thereof. Clause 13 of the insurance policy was, thus, clearly attracted.The said decision cannot be said to have any application in this case in view of the extended terms of policy. Non-delivery of goods may be on any account. It need not always be a case of reasonably abandoned. The meaning of the expression peril insured against would depend upon the terms of the policy. The policy was extended to a case where the costs of transportation would be more than the value of the goods. Marine Insurance Act is subject to the terms of insurance policy. Where the insurer takes additional premium and insure a higher risk, no restrictive meaning thereto need be given. A term of the policy must be given its effect. While construing a contract of insurance, the reason for entering thereinto and the risks sought to be covered must be considered on its own terms.69. When the entire case is based on a construction of insurance policy, the question of adduction of any oral evidence would be irrelevant particularly when the learned Single Judge gave due credit of the amount received on auction of the goods under the orders of the Singapore Court. The value of the cargo was known. It is not a disputed amount. Thus, whatever has been recovered by way of sale of the said logs, the same has to be credited for and Appellant should be held entitled only to the balance amount.70. What would, thus, be the meaning of the word possession under Sub-section (2) of Section 60 of the Marine Insurance Act read with Clause 13 of the policy? It is not the case of any of the parties that Appellant was given actual possession of the goods. Unseaworthiness of vessel due to which it became stranded as a result whereof the goods could not be delivered to Appellant, in our opinion, would come within the meaning of the expression "peril insured against".71. This leaves us to the question as to whether the exclusionary clauses contained in the insurance policy are attracted. Respondent in its written statement did not raise such a contention. It was required to be specifically pleaded and proved by Respondent. The burden to prove the applicability of exclusionary clauses was on Respondent. Neither any issue has been raised, nor any evidence has been adduced in this behalf. It is also not a case that the servants of the assured were privy to the unseaworthiness as provided for in Clause 5.5.1 of the insurance policy. There has been no evidence to that effect. Even the said provision has not been applied by the learned Single Judge. | 1 | 9,028 | 1,353 | ### 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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as to whether the sale would go through at Singapore or in Calcutta by its letter dated 12th August, 1989 which was marked as Ex. S, relevant portion whereof reads as under: "Local Sale in Singapore" "On Solicitors request the Court has given permission to dispose off the cargo in order to minimize the loss in view of the deterioration in quality of material. Accordingly, the Solicitors appointed M/s. Toplings, Recovery Agent, who advertised the sale in newspapers and the best offer received for the cargo consisting of 2300 CBM now lying over there is U.S. $ 85,000. Out of this our share comes as under:Total value offered for 2300 CBM = US$ 85,000.Therefore, our shoare 85000 x 2057.73/ 2300 = US$ 76,046.54US$ 76,046.54 x Rs. 16.90 = Rs. 12,85,166.50Whereas we have already paid Rs. 12,85,166.50 towards the consignment of 296 logs measuring 1268.99 CBM under the L/C and US $ 1,18,416/- is still payable to the shipper against the documents for 178 Logs measuring 789.74 CBM received under the D.A. Thus, there is a loss of around over 30 lakhs while disposing the entire consignment in Singapore.To bring the Cargo to Calcutta for Sale in India:To bring the cargo from Singapore to Calcutta for sale in India, the position will be as under:a) Expenditure to be borne by insurance co. towards freight and other charges like loading into ship etc. at Singapore i.e. US $75/- per CBM i.e. 2057.73 CBM x US $ 75$1,54,329.75 x Rs. 16.90 = Rs. 26,08,172.77b) Expenditure to be borne by us towards Duty and clearing expenses i.e. Rs. 721/- CBM i.e. 2057.73 CBM x Rs. 721/- per CBM comes = Rs. 14,83,623.30Total = Rs. 40,91,796.07The best price that we can get for the said Cargo in Calcutta is Rs. 1942/- per CBM. Therefore, the total sale realization will be as under:2057.73 x Rs. 1942 = Per CBM Rs. 39,95,700/-" 66. In that view of the matter, Respondent was held to be entitled to get credit thereof. Clause 13 of the insurance policy was, thus, clearly attracted. 67. Reliance has strongly been placed on a decision of this Court in Bihar Supply Syndicate v. Asiatic Navigation and Others [(1993) 2 SCC 639 : AIR 1993 SC 2054 ] wherein this Court was dealing with a different fact situation. In that case, the vessel in question was diverted to Vishakhapatnam along with cargo where the repairs of the vessel were expected to be completed. The vessel was, however, not repaired nor the wages of the crew members were paid as a result whereof the ship was directed to be arrested. It was in the aforementioned fact situation opined: "It is thus clear, after knowing the fact, that we are dealing with a Marine Insurance Policy with Institute Cargo Clauses (FPA) attached against the Insurance Company, it is the duty of the plaintiff to prove as a fact that the cargo was lost due to perils of the sea. Since the finding of the High Court is that no sea water entered in the engine room and the fact that the cargo was intact even after the ship was towed to Vishakhapatnam showed that no sea water entered the ship and, therefore, the loss to the plaintiff was not on account of perils of the sea and the suit of the plaintiff against the Insurance Company i.e. defendant 4 was rightly dismissed by the High Court." 68. The said decision cannot be said to have any application in this case in view of the extended terms of policy. Non-delivery of goods may be on any account. It need not always be a case of reasonably abandoned. The meaning of the expression peril insured against would depend upon the terms of the policy. The policy was extended to a case where the costs of transportation would be more than the value of the goods. Marine Insurance Act is subject to the terms of insurance policy. Where the insurer takes additional premium and insure a higher risk, no restrictive meaning thereto need be given. A term of the policy must be given its effect. While construing a contract of insurance, the reason for entering thereinto and the risks sought to be covered must be considered on its own terms.69. When the entire case is based on a construction of insurance policy, the question of adduction of any oral evidence would be irrelevant particularly when the learned Single Judge gave due credit of the amount received on auction of the goods under the orders of the Singapore Court. The value of the cargo was known. It is not a disputed amount. Thus, whatever has been recovered by way of sale of the said logs, the same has to be credited for and Appellant should be held entitled only to the balance amount.70. What would, thus, be the meaning of the word possession under Sub-section (2) of Section 60 of the Marine Insurance Act read with Clause 13 of the policy? It is not the case of any of the parties that Appellant was given actual possession of the goods. Unseaworthiness of vessel due to which it became stranded as a result whereof the goods could not be delivered to Appellant, in our opinion, would come within the meaning of the expression "peril insured against".71. This leaves us to the question as to whether the exclusionary clauses contained in the insurance policy are attracted. Respondent in its written statement did not raise such a contention. It was required to be specifically pleaded and proved by Respondent. The burden to prove the applicability of exclusionary clauses was on Respondent. Neither any issue has been raised, nor any evidence has been adduced in this behalf. It is also not a case that the servants of the assured were privy to the unseaworthiness as provided for in Clause 5.5.1 of the insurance policy. There has been no evidence to that effect. Even the said provision has not been applied by the learned Single Judge.
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not curtail the right of the insured to which it was otherwise entitled to. The expression "without prejudice" may have to be construed in the context in which it is used. If the purpose for which it is used is accomplished, no legitimate claim can be allowed to be defeated thereby.When the termination of the contract of insurance has actually taken place is essentially a question of fact. An insurance policy is to be construed in its entirety. A marine insurance policy does not come to an end only because the ship became stranded at a port.None of the aforementioned clauses are attracted in the facts and circumstances of the present case.The Division Bench of the High Court committed an error in holding that the insurance policy stood terminated after June/ July, 1988 in terms of clause 9 of the policy when the contract of carriage had terminated on account of the unseaworthiness of the ship. Even Respondent had not made out any case to the said effect in the pleadings. If the contract of insurance did not terminate on its own, as was wrongly opined by the Division Bench of the High Court, the question of any request for its extension did not arise.49. Undoubtedly, the contract of insurance was covered under Institute Cargo Clause (C). However, it included expressly the risk of non-delivery of even single piece of log. It included the risk of the vessel or craft being stranded or grounded. It also included the risk of institute theft pilferage and non-delivery.50. Yet again on 2nd March, 1988 and 11th March, 1988, evidently, the scope of aforesaid policy was enlarged pursuant whereto or in furtherance whereof further endorsements were made by paying additional premium, in terms whereof the risk of non-delivery was specifically covered. It will bear repetition to state that the vessel could not proceed from Singapore owing to its unseaworthiness. It was, thus, covered by the terms of the extended terms of insurance policy. The Division Bench failed to consider this aspect of the matter.If the ship was stranded at Singapore and goods were offloaded from it, Appellant must be held to have discharged its burden. Findings of fact were arrived at by the learned Single Judge on the basis of the pleadings of the parties. If a clause of Marine Insurance policy covers a broad fact, in our opinion, it would be inequitable to deny the insured to raise a plea particularly when the insurer being a State within the meaning of Article 12 of the Constitution of India is expected to act fairly and reasonably. The purport and object for which goods are insured must be given full effect. In a case of ambiguity, the construction of an insurance policy should be made in favour of the insured and not insurer.The likelihood of recovery must be judged in the light of the probabilities as they would have appeared to a reasonable assured at the moment when he knew of his loss and could have given notice of abandonment. The former rule of law that a frustration of the venture by an insured peril gives rise to a constructive total loss under a voyage policy on goods, although the goods themselves are not damages, has not been altered. [See RickardsIn that view of the matter, Respondent was held to be entitled to get credit thereof. Clause 13 of the insurance policy was, thus, clearly attracted.The said decision cannot be said to have any application in this case in view of the extended terms of policy. Non-delivery of goods may be on any account. It need not always be a case of reasonably abandoned. The meaning of the expression peril insured against would depend upon the terms of the policy. The policy was extended to a case where the costs of transportation would be more than the value of the goods. Marine Insurance Act is subject to the terms of insurance policy. Where the insurer takes additional premium and insure a higher risk, no restrictive meaning thereto need be given. A term of the policy must be given its effect. While construing a contract of insurance, the reason for entering thereinto and the risks sought to be covered must be considered on its own terms.69. When the entire case is based on a construction of insurance policy, the question of adduction of any oral evidence would be irrelevant particularly when the learned Single Judge gave due credit of the amount received on auction of the goods under the orders of the Singapore Court. The value of the cargo was known. It is not a disputed amount. Thus, whatever has been recovered by way of sale of the said logs, the same has to be credited for and Appellant should be held entitled only to the balance amount.70. What would, thus, be the meaning of the word possession under Sub-section (2) of Section 60 of the Marine Insurance Act read with Clause 13 of the policy? It is not the case of any of the parties that Appellant was given actual possession of the goods. Unseaworthiness of vessel due to which it became stranded as a result whereof the goods could not be delivered to Appellant, in our opinion, would come within the meaning of the expression "peril insured against".71. This leaves us to the question as to whether the exclusionary clauses contained in the insurance policy are attracted. Respondent in its written statement did not raise such a contention. It was required to be specifically pleaded and proved by Respondent. The burden to prove the applicability of exclusionary clauses was on Respondent. Neither any issue has been raised, nor any evidence has been adduced in this behalf. It is also not a case that the servants of the assured were privy to the unseaworthiness as provided for in Clause 5.5.1 of the insurance policy. There has been no evidence to that effect. Even the said provision has not been applied by the learned Single Judge.
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P. Palaniswami Vs. Shri Ram Popular Service Private Limited & Another | Tribunal took the view that small operators were to be favoured as against fleet owners on shorter routes and this was a consideration very relevant under sub-clause (a) of sub-section (1) of Section 47 which required the authority to consider the interest of the public generally. The fleet owners were likely to become monopolistic if even shorter routes were given to them and in course of time, if they monopolised both the shorter routes and the longer routes there would be no effective competition which is, undoubtedly, necessary in the interest of the public generally. The small operators being encourages to successfully ply the shorter routes would in course of time be ready to take over the longer routes and that would generate healthy competition between the longer route operators and help in promoting passengers interest. In other words, such a consideration was germane to Section 47 and merely because the Government order said that they should be preferred, it cannot be construed as having been compulsive in the actual decision taken. There is undoubtedly some force in this approach. Still we think that the High Court was right in coming to the conclusion that the Tribunal appeared to have been influenced by the G. O. and, hence, its decision was liable to be set aside. 7. It must be noted that when the Tribunal decided the case in 1960 the validity of the Government orders issued under Sec. 43-A had not come under challenge and grants to permits under Section 47 of the Motor Vehicles Act were disposed of on the lines given in those Government orders. The Tribunal in the present case obviously felt bound by Government Order No. 2265 of 1958 because it said in two places as follows :..................but when the Government have laid down their policy, the Regional Transport Authorities and the Tribunal should honestly endeavour to follow it. .................The right of appeal cannot be made illusory, and interest of justice and consistency and the need for honestly applying the Government order compel me to set aside the grant made in favour of the respondent, though otherwise they (respondent) may be deserving of the grant and to grant the permit to the third appellant. We have gone through the judgment of the Tribunal and it must be said that it has taken into consideration factors which are germane under Section 47. The Tribunal noticed that the appellant was entitled to 1/4 mark more than what was given to the appellant by the Regional Transport Authority. But this addition did not make any difference because even with this addition to the appellants marks the respondents score would be still higher. It also considered the period of experience of the appellant in the line and noticed that he had two or three permits on shorter routes. Recently he has shifted to Tuticorin which was one of the terminii of the route and had also a well-fitted workshop at Tuticorin. Then again for 3 years preceding the date of the application the appellant had got a very clean record. All these were matters which the Tribunal was entitled to take into consideration under Section 47 and merely because they also find a place in the Government order it would not be enough to show that the Government order was decisive in the final order passed by the Tribunal. But this ignores a very vital aspect of the case. When there is a Government order is existence and parties applying for permits come to know that the authorities under the Motor Vehicles Act, were disposing of their applications for permits in accordance with the Government order, matters not referred to in the Government order but which may be very germane for consideration under Section 47 get autmotically excluded during the hearings. The Government order, instead of Section 47, becomes the last word on the subject. That is the real vice of such Government instructions. The authorities feel bound by these instructions and the parties before them feel equally bound by them. They, naturally excluded from the controversy other matters which though relevant under Section 47 do not find a place in the Government order. As pointed out by this Court in R. M. Subhraj v. K. M. Union (P) Ltd., AIR 1972 SC 2266 . Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. It is polluted not merely because those instructions have a tendency to interpret Section47 in their own way but also because considerations other than those in the instructions get automatically excluded although they are quite relevant for the purpose of Section 47. We are, therefore, of the opinion that the High Court was right in remanding the case to the Tribunal for a re-hearing without the constraint of the Government order. 8. Mr. Ramamurthy then contended that in any case the respondent would not be entitled to a grant because by Act No. 16 and 1971 the Motor Vehicles Act, 1939, has been amended in its application to the State of Tamil Nadu and under those amendments the respondents who are the owners of 32 permits will not be entitled to consideration for grant of permit. It is, however, contended on behalf of the respondents that it is impossible for their learned Counsel to meet the contention here because several other considerations may arise including the willingness of the respondents to surrender some of their permits in order to come within the permissible limit. We do not think we should deal with the matter, here. The Tribunal will not be considering the matter afresh and if it is open to the appellant to put forward this contention, he is welcome to do it before the Tribunal. | 0[ds]But in the present case although the appellant had received less marks than the respondents, the Tribunal had considered matters which were germane under Section 47 and made the grant in favour of the appellant. The Government order, according to him, undoubtedly covered certain areas which are covered by Section 47 also and, if the Tribunal referred to such matters it would not be correct to say that the Government order prevailed in the ultimate decision. For example, in the present case the Tribunal took the view that small operators were to be favoured as against fleet owners on shorter routes and this was a consideration very relevant undere (a) ofn (1) of Section 47 which required the authority to consider the interest of the public generally. The fleet owners were likely to become monopolistic if even shorter routes were given to them and in course of time, if they monopolised both the shorter routes and the longer routes there would be no effective competition which is, undoubtedly, necessary in the interest of the public generally. The small operators being encourages to successfully ply the shorter routes would in course of time be ready to take over the longer routes and that would generate healthy competition between the longer route operators and help in promoting passengers interest. In other words, such a consideration was germane to Section 47 and merely because the Government order said that they should be preferred, it cannot be construed as having been compulsive in the actual decision taken. There is undoubtedly some force in this approach. Still we think that the High Court was right in coming to the conclusion that the Tribunal appeared to have been influenced by the G. O. and, hence, its decision was liable to be set asideBut this ignores a very vital aspect of the case. When there is a Government order is existence and parties applying for permits come to know that the authorities under the Motor Vehicles Act, were disposing of their applications for permits in accordance with the Government order, matters not referred to in the Government order but which may be very germane for consideration under Section 47 get autmotically excluded during the hearings. The Government order, instead of Section 47, becomes the last word on the subject. That is the real vice of such Government instructions. The authorities feel bound by these instructions and the parties before them feel equally bound by them. They, naturally excluded from the controversy other matters which though relevant under Section 47 do not find a place in the Government order. As pointed out by this Court in R. M. Subhraj v. K. M. Union (P) Ltd., AIR 1972 SC 2266 . Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. It is polluted not merely because those instructions have a tendency to interpret Section47 in their own way but also because considerations other than those in the instructions get automatically excluded although they are quite relevant for the purpose of Section 47. We are, therefore, of the opinion that the High Court was right in remanding the case to the Tribunal for arehearingwithout the constraint of the Government order8. Mr. Ramamurthy then contended that in any case the respondent would not be entitled to a grant because by Act No. 16 and 1971 the Motor Vehicles Act, 1939, has been amended in its application to the State of Tamil Nadu and under those amendments the respondents who are the owners of 32 permits will not be entitled to consideration for grant of permit. It is, however, contended on behalf of the respondents that it is impossible for their learned Counsel to meet the contention here because several other considerations may arise including the willingness of the respondents to surrender some of their permits in order to come within the permissible limit. We do not think we should deal with the matter, here. The Tribunal will not be considering the matter afresh and if it is open to the appellant to put forward this contention, he is welcome to do it before the Tribunal. | 0 | 2,394 | 792 | ### Instruction:
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Tribunal took the view that small operators were to be favoured as against fleet owners on shorter routes and this was a consideration very relevant under sub-clause (a) of sub-section (1) of Section 47 which required the authority to consider the interest of the public generally. The fleet owners were likely to become monopolistic if even shorter routes were given to them and in course of time, if they monopolised both the shorter routes and the longer routes there would be no effective competition which is, undoubtedly, necessary in the interest of the public generally. The small operators being encourages to successfully ply the shorter routes would in course of time be ready to take over the longer routes and that would generate healthy competition between the longer route operators and help in promoting passengers interest. In other words, such a consideration was germane to Section 47 and merely because the Government order said that they should be preferred, it cannot be construed as having been compulsive in the actual decision taken. There is undoubtedly some force in this approach. Still we think that the High Court was right in coming to the conclusion that the Tribunal appeared to have been influenced by the G. O. and, hence, its decision was liable to be set aside. 7. It must be noted that when the Tribunal decided the case in 1960 the validity of the Government orders issued under Sec. 43-A had not come under challenge and grants to permits under Section 47 of the Motor Vehicles Act were disposed of on the lines given in those Government orders. The Tribunal in the present case obviously felt bound by Government Order No. 2265 of 1958 because it said in two places as follows :..................but when the Government have laid down their policy, the Regional Transport Authorities and the Tribunal should honestly endeavour to follow it. .................The right of appeal cannot be made illusory, and interest of justice and consistency and the need for honestly applying the Government order compel me to set aside the grant made in favour of the respondent, though otherwise they (respondent) may be deserving of the grant and to grant the permit to the third appellant. We have gone through the judgment of the Tribunal and it must be said that it has taken into consideration factors which are germane under Section 47. The Tribunal noticed that the appellant was entitled to 1/4 mark more than what was given to the appellant by the Regional Transport Authority. But this addition did not make any difference because even with this addition to the appellants marks the respondents score would be still higher. It also considered the period of experience of the appellant in the line and noticed that he had two or three permits on shorter routes. Recently he has shifted to Tuticorin which was one of the terminii of the route and had also a well-fitted workshop at Tuticorin. Then again for 3 years preceding the date of the application the appellant had got a very clean record. All these were matters which the Tribunal was entitled to take into consideration under Section 47 and merely because they also find a place in the Government order it would not be enough to show that the Government order was decisive in the final order passed by the Tribunal. But this ignores a very vital aspect of the case. When there is a Government order is existence and parties applying for permits come to know that the authorities under the Motor Vehicles Act, were disposing of their applications for permits in accordance with the Government order, matters not referred to in the Government order but which may be very germane for consideration under Section 47 get autmotically excluded during the hearings. The Government order, instead of Section 47, becomes the last word on the subject. That is the real vice of such Government instructions. The authorities feel bound by these instructions and the parties before them feel equally bound by them. They, naturally excluded from the controversy other matters which though relevant under Section 47 do not find a place in the Government order. As pointed out by this Court in R. M. Subhraj v. K. M. Union (P) Ltd., AIR 1972 SC 2266 . Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. It is polluted not merely because those instructions have a tendency to interpret Section47 in their own way but also because considerations other than those in the instructions get automatically excluded although they are quite relevant for the purpose of Section 47. We are, therefore, of the opinion that the High Court was right in remanding the case to the Tribunal for a re-hearing without the constraint of the Government order. 8. Mr. Ramamurthy then contended that in any case the respondent would not be entitled to a grant because by Act No. 16 and 1971 the Motor Vehicles Act, 1939, has been amended in its application to the State of Tamil Nadu and under those amendments the respondents who are the owners of 32 permits will not be entitled to consideration for grant of permit. It is, however, contended on behalf of the respondents that it is impossible for their learned Counsel to meet the contention here because several other considerations may arise including the willingness of the respondents to surrender some of their permits in order to come within the permissible limit. We do not think we should deal with the matter, here. The Tribunal will not be considering the matter afresh and if it is open to the appellant to put forward this contention, he is welcome to do it before the Tribunal.
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But in the present case although the appellant had received less marks than the respondents, the Tribunal had considered matters which were germane under Section 47 and made the grant in favour of the appellant. The Government order, according to him, undoubtedly covered certain areas which are covered by Section 47 also and, if the Tribunal referred to such matters it would not be correct to say that the Government order prevailed in the ultimate decision. For example, in the present case the Tribunal took the view that small operators were to be favoured as against fleet owners on shorter routes and this was a consideration very relevant undere (a) ofn (1) of Section 47 which required the authority to consider the interest of the public generally. The fleet owners were likely to become monopolistic if even shorter routes were given to them and in course of time, if they monopolised both the shorter routes and the longer routes there would be no effective competition which is, undoubtedly, necessary in the interest of the public generally. The small operators being encourages to successfully ply the shorter routes would in course of time be ready to take over the longer routes and that would generate healthy competition between the longer route operators and help in promoting passengers interest. In other words, such a consideration was germane to Section 47 and merely because the Government order said that they should be preferred, it cannot be construed as having been compulsive in the actual decision taken. There is undoubtedly some force in this approach. Still we think that the High Court was right in coming to the conclusion that the Tribunal appeared to have been influenced by the G. O. and, hence, its decision was liable to be set asideBut this ignores a very vital aspect of the case. When there is a Government order is existence and parties applying for permits come to know that the authorities under the Motor Vehicles Act, were disposing of their applications for permits in accordance with the Government order, matters not referred to in the Government order but which may be very germane for consideration under Section 47 get autmotically excluded during the hearings. The Government order, instead of Section 47, becomes the last word on the subject. That is the real vice of such Government instructions. The authorities feel bound by these instructions and the parties before them feel equally bound by them. They, naturally excluded from the controversy other matters which though relevant under Section 47 do not find a place in the Government order. As pointed out by this Court in R. M. Subhraj v. K. M. Union (P) Ltd., AIR 1972 SC 2266 . Once it is found that a Tribunal which under the statute has to deal with applications for permits in a judicial manner is directed by the Government to adopt any specified method for assessing the merits of the applicants and the Tribunal takes into consideration such direction of the executive, the judicial determination by the Tribunal is polluted. It is polluted not merely because those instructions have a tendency to interpret Section47 in their own way but also because considerations other than those in the instructions get automatically excluded although they are quite relevant for the purpose of Section 47. We are, therefore, of the opinion that the High Court was right in remanding the case to the Tribunal for arehearingwithout the constraint of the Government order8. Mr. Ramamurthy then contended that in any case the respondent would not be entitled to a grant because by Act No. 16 and 1971 the Motor Vehicles Act, 1939, has been amended in its application to the State of Tamil Nadu and under those amendments the respondents who are the owners of 32 permits will not be entitled to consideration for grant of permit. It is, however, contended on behalf of the respondents that it is impossible for their learned Counsel to meet the contention here because several other considerations may arise including the willingness of the respondents to surrender some of their permits in order to come within the permissible limit. We do not think we should deal with the matter, here. The Tribunal will not be considering the matter afresh and if it is open to the appellant to put forward this contention, he is welcome to do it before the Tribunal.
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U.P.Avas Evam Vikas Parishad Vs. Om Prakash Sharma | undisputed fact that Section 16 of the Act confers power upon the Board to dispose of its property as per Rule 3 of the U.P. Avas Avam Vikas Parishad (Delegation of Powers by the Board and the Housing Commissioner) Rules, 1968. The Board has power under Section 12(1) of the Act to delegate its power either to a Committee or the Housing Commissioner or any other officer in exercise of its power to discharge its functions. It is the case of the defendants that the Assistant Housing Commissioner was not delegated this power by the Board. In this regard, there is no pleading of the plaintiff except the averments made at para 5 of the plaint, the relevant para is noted in the submissions made by the learned senior counsel on behalf of the defendants. Further there is no communication by the first defendant regarding acceptance of the proposal of the highest bid of the plaintiff as required under Section 3 of the Contract Act, 1872. This principle of law is well settled as per the decision of the Queen’s Bench in Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd [(1952) 2 QB 795]. 35. Further, unaccepted offer of the plaintiff does not create any right or any obligation on the part of the defendant to execute the lease deed. In fact, this principle is well settled by this Court in the case of Bhagwan Das Goverdhan Das Kedia v. Girdhari Lal & Co. [AIR 1966 SC 543 ] wherein this Court has held that mere making of an offer does not form part of the cause of action for claiming damages for breach of contract. In the case in hand, the aforesaid principle, without recourse, is applicable in the fact situation for the reason that the plaintiff was the highest bidder and his offer was merely accepted but no communication was sent to him as required under Section 3 of the Contract Act. Therefore, no legal right accrued in favour of the plaintiff to invoke remedy available under Section 34 of the Specific Relief Act, seeking declaratory relief as prayed in the original suit filed by the plaintiff. 36. Further, the communication under Section 4 of the Contract Act speaks of when the communication will complete. It says: “4. Communication when complete. - The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.The communication of an acceptance is complete,-- as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer.” The proposal is said to have been completed when the same is accepted by the competent authority, which has not been done in the instant case. Neither the Housing Commissioner nor the Assistant Housing Commissioner accepted the proposal in writing; therefore, there is no communication of acceptance of the offer of the plaintiff. In this regard, this court in Haridwar Singh v. Begum Sumbrui [AIR 1972 SC 1942 ] has held that the communication of acceptance of the highest bid is necessary for concluding the contract. In view of the aforesaid factual and legal proposition of law and the highest bid offered to take the property on lease for a period of 90 years with renewal for further 20 years for construction of the cinema hall, the same was neither accepted by the competent authority nor was the same communicated. Therefore, there is no concluded contract in favour of the plaintiff in respect of the plot in question and the plaintiff cannot claim any legal right and question of enforcement of the said right as provided under Section 34 of the Specific Relief Act seeking declaratory relief by the plaintiff the same did not arise in the case in hand. The above important factual and legal aspects have not been examined in proper and constructive manner either by the trial court or by the second appellate court. Therefore, the impugned judgment, order and decree are liable to be set aside. Answer to point (g) 37. The substantial questions framed by the court in the second appeal did not arise for its consideration. The High Court ought to have noticed that the legal right claimed by the plaintiff seeking relief under Section 34 of the Specific Relief Act on the basis of the pleadings is wholly untenable in law. In view of the fact that no legal right accrued in his favour in the absence of a concluded contract which was said to have existed by mere offering of highest bid in relation to the property in question to obtain the property on lease for a period of 90 years amounting to disposal of the property of the first defendant being an authority under Article 12 of the Constitution, no right was accrued upon the bidder in relation to the property in question. Therefore, the suit itself is not maintainable and the suit filed on the basis of the alleged cause of action did not arise. Hence, the trial court could not have granted any relief by not framing the relevant and proper issue and answering the same. This aspect of the matter is not considered by the trial court. Therefore, the impugned judgment is set aside by the first appellate court by recording reasons. It also did not address and examine the points that arose for consideration as framed by this Court in this judgment. However, the conclusion arrived at by the first appellate court in setting aside the impugned judgment and dismissing the suit is perfectly legal and valid. The said judgment has been erroneously interfered with by the High Court by framing substantial questions of law. In fact and in law, the aforesaid substantial questions do not arise for its consideration and answer the same in favour of the plaintiff, which are erroneous in law. | 1[ds]37. The substantial questions framed by the court in the second appeal did not arise for its consideration. The High Court ought to have noticed that the legal right claimed by the plaintiff seeking relief under Section 34 of the Specific Relief Act on the basis of the pleadings is wholly untenable in law. In view of the fact that no legal right accrued in his favour in the absence of a concluded contract which was said to have existed by mere offering of highest bid in relation to the property in question to obtain the property on lease for a period of 90 years amounting to disposal of the property of the first defendant being an authority under Article 12 of the Constitution, no right was accrued upon the bidder in relation to the property in question. Therefore, the suit itself is not maintainable and the suit filed on the basis of the alleged cause of action did not arise. Hence, the trial court could not have granted any relief by not framing the relevant and proper issue and answering the same. This aspect of the matter is not considered by the trial court. Therefore, the impugned judgment is set aside by the first appellate court by recording reasons. It also did not address and examine the points that arose for consideration as framed by this Court in this judgment. However, the conclusion arrived at by the first appellate court in setting aside the impugned judgment and dismissing the suit is perfectly legal and valid. The said judgment has been erroneously interfered with by the High Court by framing substantial questions of law. In fact and in law, the aforesaid substantial questions do not arise for its consideration and answer the same in favour of the plaintiff, which are erroneous in law. | 1 | 8,579 | 326 | ### Instruction:
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undisputed fact that Section 16 of the Act confers power upon the Board to dispose of its property as per Rule 3 of the U.P. Avas Avam Vikas Parishad (Delegation of Powers by the Board and the Housing Commissioner) Rules, 1968. The Board has power under Section 12(1) of the Act to delegate its power either to a Committee or the Housing Commissioner or any other officer in exercise of its power to discharge its functions. It is the case of the defendants that the Assistant Housing Commissioner was not delegated this power by the Board. In this regard, there is no pleading of the plaintiff except the averments made at para 5 of the plaint, the relevant para is noted in the submissions made by the learned senior counsel on behalf of the defendants. Further there is no communication by the first defendant regarding acceptance of the proposal of the highest bid of the plaintiff as required under Section 3 of the Contract Act, 1872. This principle of law is well settled as per the decision of the Queen’s Bench in Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd [(1952) 2 QB 795]. 35. Further, unaccepted offer of the plaintiff does not create any right or any obligation on the part of the defendant to execute the lease deed. In fact, this principle is well settled by this Court in the case of Bhagwan Das Goverdhan Das Kedia v. Girdhari Lal & Co. [AIR 1966 SC 543 ] wherein this Court has held that mere making of an offer does not form part of the cause of action for claiming damages for breach of contract. In the case in hand, the aforesaid principle, without recourse, is applicable in the fact situation for the reason that the plaintiff was the highest bidder and his offer was merely accepted but no communication was sent to him as required under Section 3 of the Contract Act. Therefore, no legal right accrued in favour of the plaintiff to invoke remedy available under Section 34 of the Specific Relief Act, seeking declaratory relief as prayed in the original suit filed by the plaintiff. 36. Further, the communication under Section 4 of the Contract Act speaks of when the communication will complete. It says: “4. Communication when complete. - The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.The communication of an acceptance is complete,-- as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer.” The proposal is said to have been completed when the same is accepted by the competent authority, which has not been done in the instant case. Neither the Housing Commissioner nor the Assistant Housing Commissioner accepted the proposal in writing; therefore, there is no communication of acceptance of the offer of the plaintiff. In this regard, this court in Haridwar Singh v. Begum Sumbrui [AIR 1972 SC 1942 ] has held that the communication of acceptance of the highest bid is necessary for concluding the contract. In view of the aforesaid factual and legal proposition of law and the highest bid offered to take the property on lease for a period of 90 years with renewal for further 20 years for construction of the cinema hall, the same was neither accepted by the competent authority nor was the same communicated. Therefore, there is no concluded contract in favour of the plaintiff in respect of the plot in question and the plaintiff cannot claim any legal right and question of enforcement of the said right as provided under Section 34 of the Specific Relief Act seeking declaratory relief by the plaintiff the same did not arise in the case in hand. The above important factual and legal aspects have not been examined in proper and constructive manner either by the trial court or by the second appellate court. Therefore, the impugned judgment, order and decree are liable to be set aside. Answer to point (g) 37. The substantial questions framed by the court in the second appeal did not arise for its consideration. The High Court ought to have noticed that the legal right claimed by the plaintiff seeking relief under Section 34 of the Specific Relief Act on the basis of the pleadings is wholly untenable in law. In view of the fact that no legal right accrued in his favour in the absence of a concluded contract which was said to have existed by mere offering of highest bid in relation to the property in question to obtain the property on lease for a period of 90 years amounting to disposal of the property of the first defendant being an authority under Article 12 of the Constitution, no right was accrued upon the bidder in relation to the property in question. Therefore, the suit itself is not maintainable and the suit filed on the basis of the alleged cause of action did not arise. Hence, the trial court could not have granted any relief by not framing the relevant and proper issue and answering the same. This aspect of the matter is not considered by the trial court. Therefore, the impugned judgment is set aside by the first appellate court by recording reasons. It also did not address and examine the points that arose for consideration as framed by this Court in this judgment. However, the conclusion arrived at by the first appellate court in setting aside the impugned judgment and dismissing the suit is perfectly legal and valid. The said judgment has been erroneously interfered with by the High Court by framing substantial questions of law. In fact and in law, the aforesaid substantial questions do not arise for its consideration and answer the same in favour of the plaintiff, which are erroneous in law.
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37. The substantial questions framed by the court in the second appeal did not arise for its consideration. The High Court ought to have noticed that the legal right claimed by the plaintiff seeking relief under Section 34 of the Specific Relief Act on the basis of the pleadings is wholly untenable in law. In view of the fact that no legal right accrued in his favour in the absence of a concluded contract which was said to have existed by mere offering of highest bid in relation to the property in question to obtain the property on lease for a period of 90 years amounting to disposal of the property of the first defendant being an authority under Article 12 of the Constitution, no right was accrued upon the bidder in relation to the property in question. Therefore, the suit itself is not maintainable and the suit filed on the basis of the alleged cause of action did not arise. Hence, the trial court could not have granted any relief by not framing the relevant and proper issue and answering the same. This aspect of the matter is not considered by the trial court. Therefore, the impugned judgment is set aside by the first appellate court by recording reasons. It also did not address and examine the points that arose for consideration as framed by this Court in this judgment. However, the conclusion arrived at by the first appellate court in setting aside the impugned judgment and dismissing the suit is perfectly legal and valid. The said judgment has been erroneously interfered with by the High Court by framing substantial questions of law. In fact and in law, the aforesaid substantial questions do not arise for its consideration and answer the same in favour of the plaintiff, which are erroneous in law.
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The Management Of D.T.U Vs. Shri B. B. L. Hajelay & Anr | every officer or other municipal employee shall be liable to be punished in the several ways referred to in that section by such authority as may be prescribed by regulations. The definition of the word regulation given in clause 48 of section 2 is as follows: "Regulation means regulation made by the Corporation under this Act by notification in the official gazette.In other words, the power of making regulations is vested in the Corporation and it is open to the Corporation to prescribe by regulation who would be the authority to punish any municipal officer or employee for his delinquency. Such a regulation may provide that an employee of the status of respondent no. 2 can be removed for example, by the Assistant General Manager. And yet by virtue of the proviso to that sub-section respondent no. 2 would be protected against any such action of the Assistant General Manager because his appointing authority was the General Manager and the Assistant General Manager was his subordinate.A similar situation had arisen in R. T. Rangachari v. Secretary of State 64 Ind. App. 40 = (AIR 1937 PC 27 ). The appellant Rangachari had been appointed by the Inspector General of Police but his dismissal was ordered in 1928 by an official lower in rank than the Inspector General. Rangachari claimed protection under Section 96 (b) of the Government of India Act, 1919 which so far as we are concerned was as follows:"Sub-section (1) - Subject to the provisions of this Act and the rules made thereunder every person in the Civil Service of the Crown in India holds office during his Majestys pleasure and may be employed in any manner required by a proper authority within the scope of his duty but no person in that service may be dismissed by any authority subordinate to that by which he was appointed.Since rules had been framed by which the power of dismissal had been delegated by the Inspector General of Police to a subordinate authority it was contended, though with certain amount of hesitation, that the dismissal of Rangachari was proper. Lord Roche delivering the judgment in the case observed "the courts below held that the power of dismissal was in fact delegated and was lawfully delegated to the person who purported to exercise it. Counsel for the respondent candidly expressed a doubt as to the possibility of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under the rules, it would wipe out a proviso and destroy a protection contained not in the rules but in the section itself. Their Lordships are clearly of opinion that the dismissal purporting to be thus ordered in February was by reason of its origin bad and inoperative. It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time. It is plainly necessary that this statutory safeguard should be observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.12. It is, therefore, clear that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by the statute itself. In other words, any regulation made by the Corporation which would have authorised the Assistant General Manager to remove respondent no. 2 from service would have been inoperative qua respondent no. 2, as his appointing authority was the General Manager (Transport).The question now is whether, if the Corporation itself by any regulation could not have destroyed the above protection given by the statute to respondent no. 2, it would be appropriate to say that the General Manager by an order delegating his functions to the Assistant General Manager under Sections 491 r/w 504 of the Corporation Act could destroy the protection. Since the General Manager (Transport) is an officer of the Corporation and subordinate to the Corporation, it will amount to saying that what the Corporation could not do by a regulation could be done by an officer of the Corporation by merely delegating his functions to the Assistant General Manager. The position would look ridiculous. The true position in law is that while Sections 491 and 504 read together authorised the General Manager (Transport) to delegate his powers and functions to a subordinate, they did not authorise delegation of his rank. What is involved in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action. When the proviso to sub-section (1) of section 95 says that an officer and an employee shall not be dismissed by an authority subordinate to that by which he was appointed the subordination is of rank and not of functions. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13. Mr. Chagla then contended that by reason of the delegation, the Assistant General Manager had become an agent of the General Manager and the act of the Assistant General Manager must be deemed to be the act of the General Manager himself. We are not concerned here with the law of agency. It is implicit in the statutory prohibition debarring removal by a lesser authority, that the appointing authority has to personally apply its mind to the question of removal and cannot delegate such a function. Since the authority which can remove an employee is the appointing authority or its superior in office, the protection thus provided cannot be destroyed by importing concepts of agency. | 0[ds]10. Mr. Chagla, appearing on behalf of the appellant Undertaking, contended that respondent no. 2 had been actually appointed by the Manager of the Delhi Road Transport Authority constituted under the Delhi Road Transport Authority Act, 1950 and on the repeal of that Act and the takeover of the authority by the Corporation, any officer of the appellant Undertaking, competent to appoint or remove a driver, was entitled to remove him from service. The Assistant General Manager of the Undertaking could not be described as subordinate to the Manager of the Delhi Road Transport Authority because factually he was not. Therefore, he contended, the provision that he shall not be removed by the authority subordinate to that by which he was appointed found in section 95 of the Corporation Act was inapplicable.In our opinion, the contention is not well founded. The proviso to section 95(1) gives protection to every officer and employee of the Undertaking that he may not be removed or dismissed from service by an authority subordinate to that by which he was appointed. It may be that in 1961 the functions of the General Manager (Transport) had been delegated to the Assistant General Manager. The only consequence is that is if after 1961 the Assistant General Manager makes the appointment of a driver like respondent no. 2, he would no doubt be entitled to remove him from service. But so far as respondent no. 2 is concerned his individual position will have to be determined with reference to the time when he was absorbed in Corporation Service.It is, therefore, clear that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by the statute itself. In other words, any regulation made by the Corporation which would have authorised the Assistant General Manager to remove respondent no. 2 from service would have been inoperative qua respondent no. 2, as his appointing authority was the General Manager (Transport).The question now is whether, if the Corporation itself by any regulation could not have destroyed the above protection given by the statute to respondent no. 2, it would be appropriate to say that the General Manager by an order delegating his functions to the Assistant General Manager under Sections 491 r/w 504 of the Corporation Act could destroy the protection. Since the General Manager (Transport) is an officer of the Corporation and subordinate to the Corporation, it will amount to saying that what the Corporation could not do by a regulation could be done by an officer of the Corporation by merely delegating his functions to the Assistant General Manager. The position would look ridiculous. The true position in law is that while Sections 491 and 504 read together authorised the General Manager (Transport) to delegate his powers and functions to a subordinate, they did not authorise delegation of his rank. What is involved in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action. When the proviso to(1) of section 95 says that an officer and an employee shall not be dismissed by an authority subordinate to that by which he was appointed the subordination is of rank and not of functions. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13.Mr. Chagla then contended that by reason of the delegation, the Assistant General Manager had become an agent of the General Manager and the act of the Assistant General Manager must be deemed to be the act of the General Manager himself. We are not concerned here with the law of agency.It is implicit in the statutory prohibition debarring removal by a lesser authority, that the appointing authority has to personally apply its mind to the question of removal and cannot delegate such a function. Since the authority which can remove an employee is the appointing authority or its superior in office, the protection thus provided cannot be destroyed by importing concepts of agency. | 0 | 2,633 | 777 | ### Instruction:
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every officer or other municipal employee shall be liable to be punished in the several ways referred to in that section by such authority as may be prescribed by regulations. The definition of the word regulation given in clause 48 of section 2 is as follows: "Regulation means regulation made by the Corporation under this Act by notification in the official gazette.In other words, the power of making regulations is vested in the Corporation and it is open to the Corporation to prescribe by regulation who would be the authority to punish any municipal officer or employee for his delinquency. Such a regulation may provide that an employee of the status of respondent no. 2 can be removed for example, by the Assistant General Manager. And yet by virtue of the proviso to that sub-section respondent no. 2 would be protected against any such action of the Assistant General Manager because his appointing authority was the General Manager and the Assistant General Manager was his subordinate.A similar situation had arisen in R. T. Rangachari v. Secretary of State 64 Ind. App. 40 = (AIR 1937 PC 27 ). The appellant Rangachari had been appointed by the Inspector General of Police but his dismissal was ordered in 1928 by an official lower in rank than the Inspector General. Rangachari claimed protection under Section 96 (b) of the Government of India Act, 1919 which so far as we are concerned was as follows:"Sub-section (1) - Subject to the provisions of this Act and the rules made thereunder every person in the Civil Service of the Crown in India holds office during his Majestys pleasure and may be employed in any manner required by a proper authority within the scope of his duty but no person in that service may be dismissed by any authority subordinate to that by which he was appointed.Since rules had been framed by which the power of dismissal had been delegated by the Inspector General of Police to a subordinate authority it was contended, though with certain amount of hesitation, that the dismissal of Rangachari was proper. Lord Roche delivering the judgment in the case observed "the courts below held that the power of dismissal was in fact delegated and was lawfully delegated to the person who purported to exercise it. Counsel for the respondent candidly expressed a doubt as to the possibility of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under the rules, it would wipe out a proviso and destroy a protection contained not in the rules but in the section itself. Their Lordships are clearly of opinion that the dismissal purporting to be thus ordered in February was by reason of its origin bad and inoperative. It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time. It is plainly necessary that this statutory safeguard should be observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.12. It is, therefore, clear that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by the statute itself. In other words, any regulation made by the Corporation which would have authorised the Assistant General Manager to remove respondent no. 2 from service would have been inoperative qua respondent no. 2, as his appointing authority was the General Manager (Transport).The question now is whether, if the Corporation itself by any regulation could not have destroyed the above protection given by the statute to respondent no. 2, it would be appropriate to say that the General Manager by an order delegating his functions to the Assistant General Manager under Sections 491 r/w 504 of the Corporation Act could destroy the protection. Since the General Manager (Transport) is an officer of the Corporation and subordinate to the Corporation, it will amount to saying that what the Corporation could not do by a regulation could be done by an officer of the Corporation by merely delegating his functions to the Assistant General Manager. The position would look ridiculous. The true position in law is that while Sections 491 and 504 read together authorised the General Manager (Transport) to delegate his powers and functions to a subordinate, they did not authorise delegation of his rank. What is involved in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action. When the proviso to sub-section (1) of section 95 says that an officer and an employee shall not be dismissed by an authority subordinate to that by which he was appointed the subordination is of rank and not of functions. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13. Mr. Chagla then contended that by reason of the delegation, the Assistant General Manager had become an agent of the General Manager and the act of the Assistant General Manager must be deemed to be the act of the General Manager himself. We are not concerned here with the law of agency. It is implicit in the statutory prohibition debarring removal by a lesser authority, that the appointing authority has to personally apply its mind to the question of removal and cannot delegate such a function. Since the authority which can remove an employee is the appointing authority or its superior in office, the protection thus provided cannot be destroyed by importing concepts of agency.
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10. Mr. Chagla, appearing on behalf of the appellant Undertaking, contended that respondent no. 2 had been actually appointed by the Manager of the Delhi Road Transport Authority constituted under the Delhi Road Transport Authority Act, 1950 and on the repeal of that Act and the takeover of the authority by the Corporation, any officer of the appellant Undertaking, competent to appoint or remove a driver, was entitled to remove him from service. The Assistant General Manager of the Undertaking could not be described as subordinate to the Manager of the Delhi Road Transport Authority because factually he was not. Therefore, he contended, the provision that he shall not be removed by the authority subordinate to that by which he was appointed found in section 95 of the Corporation Act was inapplicable.In our opinion, the contention is not well founded. The proviso to section 95(1) gives protection to every officer and employee of the Undertaking that he may not be removed or dismissed from service by an authority subordinate to that by which he was appointed. It may be that in 1961 the functions of the General Manager (Transport) had been delegated to the Assistant General Manager. The only consequence is that is if after 1961 the Assistant General Manager makes the appointment of a driver like respondent no. 2, he would no doubt be entitled to remove him from service. But so far as respondent no. 2 is concerned his individual position will have to be determined with reference to the time when he was absorbed in Corporation Service.It is, therefore, clear that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by the statute itself. In other words, any regulation made by the Corporation which would have authorised the Assistant General Manager to remove respondent no. 2 from service would have been inoperative qua respondent no. 2, as his appointing authority was the General Manager (Transport).The question now is whether, if the Corporation itself by any regulation could not have destroyed the above protection given by the statute to respondent no. 2, it would be appropriate to say that the General Manager by an order delegating his functions to the Assistant General Manager under Sections 491 r/w 504 of the Corporation Act could destroy the protection. Since the General Manager (Transport) is an officer of the Corporation and subordinate to the Corporation, it will amount to saying that what the Corporation could not do by a regulation could be done by an officer of the Corporation by merely delegating his functions to the Assistant General Manager. The position would look ridiculous. The true position in law is that while Sections 491 and 504 read together authorised the General Manager (Transport) to delegate his powers and functions to a subordinate, they did not authorise delegation of his rank. What is involved in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action. When the proviso to(1) of section 95 says that an officer and an employee shall not be dismissed by an authority subordinate to that by which he was appointed the subordination is of rank and not of functions. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13.Mr. Chagla then contended that by reason of the delegation, the Assistant General Manager had become an agent of the General Manager and the act of the Assistant General Manager must be deemed to be the act of the General Manager himself. We are not concerned here with the law of agency.It is implicit in the statutory prohibition debarring removal by a lesser authority, that the appointing authority has to personally apply its mind to the question of removal and cannot delegate such a function. Since the authority which can remove an employee is the appointing authority or its superior in office, the protection thus provided cannot be destroyed by importing concepts of agency.
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Church Of North India Vs. Lavajibhai Ratanjibhai and Others | entire world. 96. In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others [(1995) 5 SCC 75] , this Court following Dhulabhai (supra) held that having regard to the provisions contained in the Industrial Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the civil court will have no jurisdiction as enumerated in paragraph 35. 97. In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others [(2003) 6 SCC 151] the allegations made in the plaint showed that the only right claimed by the Appellants was that of being ancestral pujaris of the temple. They did not claim to be the trustees of any trust. No declaration regarding the existence or otherwise of the trust or any particular property is the property of such trust had been claimed and in that view of the matter, it was held that the reliefs so claimed do not come within the purview of Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity Commissioner will have the exclusive jurisdiction to hold an inquiry and give a decision. 98. Ramesh Chand Ardawatiwa Vs. Anil Panjwani [(2003) 7 SCC 350] has no application in the present case as therein the Charity Commissioner took a specific objection that the civil courts jurisdiction is barred whereupon several additional issues were framed and determined. 99. In NDMC Vs. Satish Chand (Deceased) By LR. Ram Chand [(2003) 10 SCC 38] , this Court clearly held that Sections 84 and 86 of the Punjab Municipal Act, 1911 bar the jurisdiction of the civil court as the Act provided a complete remedy to the party at plea as also a remedy by way of an appeal. 100. In K. Shamrao and Others Vs. Assistant Charity Commissioner [(2003) 3 SCC 563] , this Court held: "17- Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary civil court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted." 101. In Yeshwantrao Laxmanrao Ghatge and Another Vs. Baburao Bala Yadav (Dead) By LRs. [(1978) 1 SCC 669] , this Court observed: "8. Mr Datar placed reliance upon the decision of the Bombay High Court in Dev Chavata v. Ganesh Mahadeo Deshpande in order to take advantage of Section 52-A of the Act. The ratio of the case has to be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is correct. This would be on the footing that the decision given by the Assistant Charity Commissioner under Section 79 read with Section 80 of the Act was conclusive and final. He had exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a suit filed under Section 50 of the Act was not barred under Section 52-A because the decision of the Assistant Charity Commissioner given in 1954 had declared the property to be a trust property and which decision was final." 102. In Suresh Ramniwas Mantri and another Vs. Mohd. Iftequaroddin s/o Mohd. Badroddin [1999(2) Mh.L.J. 131] it was observed that a society although formed either for religious or charitable purposes or for both cannot be held to a public trust ipso facto although registered under the Societies Registration Act unless it is registered also under the BPT Act as the question whether such a trust was validly formed or not would come within the purview of Sections 18, 19 and 20 of the BPT Act. In that case the plaintiff was not registered as a public trust and in that situation it was held that Section 80 would operate. 103. In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High Court held that a civil suit cannot be entertained only because a complicated questions of title has been raised. 104. In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani and Others [AIR 1973 (Bom) 130 ] the question was as to whether the author of a trust was the lawful owner of the property of which he has created the trust. The Full Bench of Bombay High Court held that the author of the trust has no title over the property and Section 80 would not operate as a bar. 105. In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a co-trustee to delegate a matter relating to grant or determination of lease to another co-trustee keeping in view of Section 47 of the Act which deprives the trustee from delegating his office or any of his duties to a co-trustee or a stranger unless conditions mentioned therein are complied with. 106. The principle enunciated in each of the decision laid down relate to the fact situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred. CONCLUSION: | 0[ds]42. The question as regard ouster of a jurisdiction of a Civil Court must be construed having regard to the Scheme of the Act as also the object and purport it seeks to achieve. The law in this regard is no longer res integra43. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code of Civil Procedure45. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not(c) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals(d) When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies(f) Questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry(g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply[See also Rajasthan State Road Transport Corporation and Another vs. Krishna Kant and Others (1995) 5 SCC 75 , Dwarka Prasad Agarwal vs. Ramesh Chand Agarwal - (2003) 6 SCC 220 , Sahebgouda vs. Ogeppa (2003) 6 SCC 151 , Dhruv Green Field Ltd. vs. Hukam Singh (2002) 6 SCC 416 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors, [2005 (4) SCALE 116]46. The same, however, would not mean that in a given case if the court has the jurisdiction to determine a part of the relief claimed, it will not confine itself thereto and reject the plaint in its entirety. For the purpose of determination of question as to whether the suit is barred, the averments made in the plaint are germane. [See Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 ]61. We have noticed hereinbefore that as regard the correctness or otherwise of functioning of the congregation of Ankleshwar and Valsad had been the subject matter of complaints before the authorities under the BPT Act62. One of the causes of action for instituting the suit is said to be constitution of a special committee by the defendant Nos. 1 to 4; resolution dated 12th November, 1978 was passed and the obstructions created by them to the plaintiffs and other members of the Pastorates through the actions of the Plaintiffs and other members of the Pastorates in the name of the former Brethren Church63. The plaintiffs made their position clear when they categorically stated in paragraph 21 that the suit inter alia involved questions as to the rights of property of the former Brethren Church65. The plaint nowhere suggests that the society and the trust had ever been treated as two different entities. No case has been made in the plaint to the effect that the society as registered under the Societies Registration Act plays any role or discharges any function which is not done by the trustees of the trust. It also does not appear from a perusal of the plaint that the society and the trust comprises of different persons or for different functions to perform. In fact in paragraph 2 of the plaint it is accepted that the Church which was registered as a society under the Societies Registration Act was a public trust as defined under Section 2(13) of the BPT Act. The ownership of movable and immovable properties at the places mentioned in the plaint is referable to the congregations under the Brethren Church. It is not alleged that whereas the properties belong to the trust it was managed by the society. The plaint furthermore does not disclose that the decision as regard dissolution of the churches and congregation of Brethren Church had been taken by anybody other than the trustees. The committees constituted for the aforementioned purpose, viz., Continuation Committee and Negotiating Committee, evidently were represented by the authorities of the congregations and not of any society. A decision, as would appear from the averments made in paragraph 6 of the plaint, to dissolve six uniting Churches and merge the same into one, viz., the Church of Northern India (C.N.I.) so as to make the latter a legal continuation and successor of the United Churches and all the properties, assets, obligations, etc. of these uniting churches would vest in or dissolve on C.N.I. The very fact that a decision having been taken as regard the properties, assets, obligations of the United Churches, the same would mean that they would vest in the trust to be created for the said purpose and not for the benefit of any society66. We are not oblivious of the fact that the Resolution adopted in the meeting held on 17th February, 1968 allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act but it is now beyond any controversy that the society having not owned any property, their transfer in favour of a new society was impermissible in law. In terms of Section 5 of the Societies Registration act, all properties would vest in the trustees and only in case in absence of vesting of such properties in trustees the same would be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society67. There is nothing on record to show that the concerned churches were being managed by the societies registered under the Societies Registration Act. In any event, it stands accepted that the dispute as regard dissolution of societies and adjustment of their affairs should have been referred to the principal court of original civil jurisdiction68. The suit in question also does not conform to the provisions of Section 13 of the Societies Registration Act68. Section 20 of the Act provides that the societies enumerated therein can only be registered under the said Act70. Unless a suit is filed in terms of Section 13 of the Act, the Society is not dissolved. Even assuming that the society stands dissolved in terms of its Memorandum of Association and Articles of Association, the same would not ipso facto mean that the properties could be adjusted amongst the members of the society in terms of the provisions of the said Act. Concededly, the properties of the trust being properties of the religious trust had vested in such trust. Such a provision, we have noticed hereinbefore, also exist in the BPT Act. Thus, only because the society has been dissolved, ipso facto the properties belonging to the trust cannot be said to have been adjusted. The Appellants, thus, we have noticed hereinbefore, have averred in the plaint that the suit relates to the property of the trust and their administration. If the properties of the churches did not belong to the society, the Appellant herein cannot claim the same as their successor. The plaint has to be read meaningfully. So done, it leads to the only conclusion that the dispute was in relation to the management of the churches as religious trust and not as a society. Even if it is contended that the administration of the property would mean the properties of the Brethren Church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable74. The finding of the learned Trial Judge on that count is apparently wrong. The learned counsel for the Appellants also did not raise any contention before us that having regard to the provisions contained in Article 254 of the Constitution of India, the provisions of the Societies Registration Act shall prevail over the BPT Act75. In fact the Appellants have categorically admitted that the Memorandum of Association of the Society itself became the deed of trust. It also stands admitted that only with a view to have one body to administer and manage the properties, the trust so created by the society was also registered. It is not a case where the trust was created for the benefit of the society. Furthermore, there is nothing on record to show the mode and manner of the management and control of the trust property. [See Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. State of Delhi (Now Delhi Administration) and another, AIR 1962 SC 458 , Dharam Dutt and Others Vs. Union of India and Others, (2004) 1 SCC 712 , para 52 and Illachi Devi (Dead) By LRs. and Others Vs. Jain Society, Protection of Orphans India and Others, (2003) 8 SCC 413 , paras 21 and 22]76. In Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar [AIR 1965 SC 338 ], this Court did not permit a new question to be raised. In this case also, a new contention has been raised contrary to the pleadings that the society and the trust are different entities77. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2)78. In view of the decision of this Court in Dhulabhai (supra) such finality clause would lead to a conclusion that civil courts jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit. In this case, we are not concerned with a dispute as regard absolute title of the trust property. We are also not concerned with the question as regard creation of any right by the trust in a third party which would be otherwise beyond the jurisdiction of the Charity Commissioner. It is also not a case where the plaintiffs made a complaint that the provisions of the BPT Act were not complied with or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure. In fact no order has been passed on the Appellants application for changes in the entries made in the registers maintained under Section 17 of the Act. The BPT Act provides for express exclusion of the jurisdiction of the Civil Court. It in various provisions contained in Chapter IV a power of inquiry and consequently a power of adjudication as regard the list of movable and immovable trust property, the description and particulars thereof for the purpose of its identification have been conferred. In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to the trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of succession to the office of the trustee as also whether any property is the property of such trust. It is only when the statutory authority satisfies itself as regard the genuineness of the trust and the properties held by it, an entry is made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof79. A change notice having been given, it would now be for the appropriate authority to consider the matter and if a change has occurred, a finding is required to be arrived which must contain the reasons therefor. The defendants are disputing that any such change in accordance with law was effected. An order passed by Deputy or Assistant Charity Commissioner is appealable. Yet again, when an amendment is made in the entry in the register, the same would be final and conclusive. Even a power exists for holding a further inquiry82. Prayer (a) in the plaint is for a declaration. Such declaration cannot be granted by a civil court as regard succession of the District Church of Brethren as the same was a religious trust registered under the BPT Act83. Prayer (b) of the plaint also could not have been granted, as the question as to whether the applicant is the legal continuation and successor of the First District Church of Brethren is a matter which would fall for exclusive determination of Charity Commissioner keeping in view the provisions of the deed of trust as regard its succession. It would necessarily follow that whether the First Appellant became a legal successor of the properties held by the First District Church of Brethren could not also have been granted. The decision and resolution purported to have been adopted by the Synod and Gujarat Diocesan Council are binding on all churches or not would again be a question which could have been gone into by the Charity Commissioner as the same had direct bearing not only with the administration and management of the Church registered with it but also related to the properties held by it. Such a decision of the Charity Commissioner is again final and conclusive subject to the decision of the appellate authority, viz., Bombay Revenue Tribunal84. Grant of prayer (c) for perpetual injunction would also give rise to adjudication on the question as to whether the Appellant herein had the legal right to own the properties of the First District Church of Brethren and administer or manage the same although at the relevant time it was not registered trust and although no amendment had been effected in the registers and books maintained by the Charity Commissioner in terms of Section 17 read with Sections 21 and 22 of the Act. The plaintiffs with a view to obtain an order of injunction furthermore were required to establish that they could file a suit for enforcement of right of the Appellant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of the BPT Act. If the question as regard recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal85. Yet again the question as regard existence of a trust is a matter which squarely falls within the purview of Section 79 of the Act86. We have no doubt in our mind that the Charity Commissioner was impleaded as a party at a later stage of the suit only with a view to fulfill the requirements of Sub-section (3) of Section 50 of the Act90. The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil courts jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question91. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever106. The principle enunciated in each of the decision laid down relate to the fact situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred. | 0 | 14,250 | 3,656 | ### Instruction:
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entire world. 96. In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others [(1995) 5 SCC 75] , this Court following Dhulabhai (supra) held that having regard to the provisions contained in the Industrial Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the civil court will have no jurisdiction as enumerated in paragraph 35. 97. In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others [(2003) 6 SCC 151] the allegations made in the plaint showed that the only right claimed by the Appellants was that of being ancestral pujaris of the temple. They did not claim to be the trustees of any trust. No declaration regarding the existence or otherwise of the trust or any particular property is the property of such trust had been claimed and in that view of the matter, it was held that the reliefs so claimed do not come within the purview of Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity Commissioner will have the exclusive jurisdiction to hold an inquiry and give a decision. 98. Ramesh Chand Ardawatiwa Vs. Anil Panjwani [(2003) 7 SCC 350] has no application in the present case as therein the Charity Commissioner took a specific objection that the civil courts jurisdiction is barred whereupon several additional issues were framed and determined. 99. In NDMC Vs. Satish Chand (Deceased) By LR. Ram Chand [(2003) 10 SCC 38] , this Court clearly held that Sections 84 and 86 of the Punjab Municipal Act, 1911 bar the jurisdiction of the civil court as the Act provided a complete remedy to the party at plea as also a remedy by way of an appeal. 100. In K. Shamrao and Others Vs. Assistant Charity Commissioner [(2003) 3 SCC 563] , this Court held: "17- Functions of the Assistant Charity Commissioner are predominantly adjudicatory. The Assistant Charity Commissioner has almost all the powers which an ordinary civil court has including power of summoning witnesses, compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence induced and arguments submitted." 101. In Yeshwantrao Laxmanrao Ghatge and Another Vs. Baburao Bala Yadav (Dead) By LRs. [(1978) 1 SCC 669] , this Court observed: "8. Mr Datar placed reliance upon the decision of the Bombay High Court in Dev Chavata v. Ganesh Mahadeo Deshpande in order to take advantage of Section 52-A of the Act. The ratio of the case has to be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is correct. This would be on the footing that the decision given by the Assistant Charity Commissioner under Section 79 read with Section 80 of the Act was conclusive and final. He had exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a suit filed under Section 50 of the Act was not barred under Section 52-A because the decision of the Assistant Charity Commissioner given in 1954 had declared the property to be a trust property and which decision was final." 102. In Suresh Ramniwas Mantri and another Vs. Mohd. Iftequaroddin s/o Mohd. Badroddin [1999(2) Mh.L.J. 131] it was observed that a society although formed either for religious or charitable purposes or for both cannot be held to a public trust ipso facto although registered under the Societies Registration Act unless it is registered also under the BPT Act as the question whether such a trust was validly formed or not would come within the purview of Sections 18, 19 and 20 of the BPT Act. In that case the plaintiff was not registered as a public trust and in that situation it was held that Section 80 would operate. 103. In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High Court held that a civil suit cannot be entertained only because a complicated questions of title has been raised. 104. In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani and Others [AIR 1973 (Bom) 130 ] the question was as to whether the author of a trust was the lawful owner of the property of which he has created the trust. The Full Bench of Bombay High Court held that the author of the trust has no title over the property and Section 80 would not operate as a bar. 105. In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a co-trustee to delegate a matter relating to grant or determination of lease to another co-trustee keeping in view of Section 47 of the Act which deprives the trustee from delegating his office or any of his duties to a co-trustee or a stranger unless conditions mentioned therein are complied with. 106. The principle enunciated in each of the decision laid down relate to the fact situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred. CONCLUSION:
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(b) of the plaint also could not have been granted, as the question as to whether the applicant is the legal continuation and successor of the First District Church of Brethren is a matter which would fall for exclusive determination of Charity Commissioner keeping in view the provisions of the deed of trust as regard its succession. It would necessarily follow that whether the First Appellant became a legal successor of the properties held by the First District Church of Brethren could not also have been granted. The decision and resolution purported to have been adopted by the Synod and Gujarat Diocesan Council are binding on all churches or not would again be a question which could have been gone into by the Charity Commissioner as the same had direct bearing not only with the administration and management of the Church registered with it but also related to the properties held by it. Such a decision of the Charity Commissioner is again final and conclusive subject to the decision of the appellate authority, viz., Bombay Revenue Tribunal84. Grant of prayer (c) for perpetual injunction would also give rise to adjudication on the question as to whether the Appellant herein had the legal right to own the properties of the First District Church of Brethren and administer or manage the same although at the relevant time it was not registered trust and although no amendment had been effected in the registers and books maintained by the Charity Commissioner in terms of Section 17 read with Sections 21 and 22 of the Act. The plaintiffs with a view to obtain an order of injunction furthermore were required to establish that they could file a suit for enforcement of right of the Appellant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of the BPT Act. If the question as regard recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal85. Yet again the question as regard existence of a trust is a matter which squarely falls within the purview of Section 79 of the Act86. We have no doubt in our mind that the Charity Commissioner was impleaded as a party at a later stage of the suit only with a view to fulfill the requirements of Sub-section (3) of Section 50 of the Act90. The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil courts jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question91. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever106. The principle enunciated in each of the decision laid down relate to the fact situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred.
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The Fine Knitting Co., Ltd Vs. The Industrial Court, Bombay And Others | Sri Mehta, it is inconceivable that the employees engaged in two departments integral connected with each other and constituting one unit would be paid different minimum wages. What is true about the minimum wages and the dearness allowance is also true about the bonus. It appears that even in years in which the appellant made profits and actually paid bonus to the workmen employed in the spinning department, no bonus was paid to the employees engaged in the knitting department. That again can be explained and justified only on the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the employees in the other. It was suggested by Sri Mehta that the genesis of the present dispute lies in the anxiety of respondent 3 to take within its jurisdiction the employees engaged by the appellant in its spinning department. On the other hand, Sri Barot for respondents 3 and 4 contends that the present trouble arose because the appellant began to deny to its employees in the spinning department the benefits of all relevant conditions of service which were applicable to the employees in the textile industry in Ahmedabad. Whatever may be the background of the dispute and its genesis, it is clear beyond doubt that the way in which the appellant has treated its employees in spinning as distinguished from its employees in knitting leads very strongly to the inference that the appellant treated the two departments, not as one unit but as separate units, each one functioning on its own and independently of the other.It is in the light of these circumstances that respondents 1 and 2 were not impressed by the relevant factors in which the appellant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, must be separately recognized under S. 11. We do not see how the appellant can successfully challenged the correctness of this conclusion.7. There is one more point which yet remains to be considered. Sri Mehta argues that the impugned order recognizing two different undertaking under S. 11(1) is not justified by the provisions of the statute. Section 11 provides that the Registrar may, after making such inquiry as he deems fit, recognize for the purposes of the Act -(1) any concern in an industry to be an undertaking;(2) any section of an undertaking to be an occupation.8. The argument is that S. 11(1) does not authorized the splitting up of a concern into two undertakings. A concern, says Sri Mehta, is the whole of the concern or establishment run by the appellant and as such, it has to be recognized as one undertakings; in so far as the order under appeal treats the appellants concern as two undertakings, it is contrary to S. 11(1). We are not impressed by this argument. The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot be recognized as cotton textile industry because it is a concern engaged in spinning only which can be recognized under that category. If that is so, industrial activity of the appellant in relation to hosiery industry must be recognized separately from the textile undertaking. If one concern or company carries on several business or undertakes different types of industrial works, these business or works would amount to separate enterprises or undertakings and would have to be recognised as such. In fact, if the appellant itself has been treating the two kinds of work separately and has thus split up its whole business into two independent sections, it is not easy to understand why the Registrar cannot recognize the existence of two undertakings carried on by the appellant and treat the said undertakings as such. We see no justification for the assumption made by Sri Mehta that S. 11(1) does not permit the recognition of several undertakings carried on by the same company separately. It all depends on whether the undertakings are separate, distinct and independent of each other or are functionally integral to interdependent. In the former case, the registrar would be justified in treating the several undertakings separately while in the latter case, he may recognize all of them as one undertaking.There is one minor point to which reference may incidentally be made. It appears that before respondent 1, it was urged by the made by respondents 3 and 4 were barred by res judicata. The argument was that since respondent 2 had on an earlier occasion considered the merits of the case and refused to grant the request made by respondent 3 for recognizing the two undertakings separately, the same question could not be re-agitated again before the same authority. In our opinion, there is no substance in this argument. As we have already pointed out, when respondent 2 passed his earlier order, an appeal was preferred against the said order by respondent 4 before respondent 1. That appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal. If respondent 4 had no right to make an appeal because he was not a party to the said proceedings, it is difficult to see how he can be precluded from making the present application on the ground of res judicata. At the highest, a plea of res judicata may perhaps be raised against respondents 3 but that would not be effective view of the fact that in the present case, an application has been made by respondent 4 as well. That is why Sri Mehta did not seriously press the point of res judicata before us.9. | 0[ds]It is in the light of these decisions that the point raised by Sri Mehta has to bedealing with the significance and the effect of the factors on which Sri Mehta has rightly relied, it is necessary bear in mind certain other relevant factors on which the decision under appeal is substantially based. It is true that in 1924, the spinning section of the establishment may have begun as a subsidiary to the hosiery section and in order to serve as its feeder. But the evidence on the record clearly shows that the position is now reversed and that the spinning section has now assumed major importance and hosiery takes a minor place in the industrial activities of theMehta quarrels with some of these figures but does not dispute the broad conclusion which is drawn from the figures that the number of employees engaged in the spinning section is far more than that employed in the hosiery section. Thus, there can be no doubt that the spinning activity of the appellant which may have begun as subsidiary to the hosiery activity has now grown in importance and has taken a place of pride in the industrial activity of the appellant considered as a whole; it can no longer be regarded as subsidiary to hosiery.It is common ground that by the notification issued under the Cotton Textile (Control) Order, 1948, the appellant is called upon to supply to the Government the prescribed quantity of yarn produced by the spinning department. It is unnecessary to refer to the details of the order or to the extent of the yarn required to be supplied by the appellant under it. What is significant is the fact that by the application of the order issued in that behalf, the Government has treated the appellant as a producer who has a spinning plant and in that sense, the existence of the spinning activity of the appellant has been treated as an independent activity liable to be controlled by the notification issued under the Cotton Textile (Control) Order,as to the argument that the spinning and the hosiery are functionally integrated, it is clear that hosiery can exist without spinning, provided the industry engaged in hosiery purchases yarn required for the purpose of hosiery. That is one aspect of the matter. But the more important aspect on which reliance has been placed against the appellant is that the appellants spinning department produces yarn of all counts some of which would admittedly not be useful for hosiery work. When the appellant was asked whether the allegation made by respondents 3 and 4 in that behalf was true or not, the management of the appellant hesitatingly denied the said allegation. But an advertisement published in the local daily Sandesh was produced by respondents 3 and 4 and it clearly showed that yarn of all counts was offered by the appellant for sale in the general market. Therefore, it would be idle to contend that the spinning work carried on in the spinning department is meant exclusively or solely for the hosiery department. If the spinning department produces yarn which is not useful or necessary for, and which cannot be used by, the hosiery section, the only inference is that the spinning department is working on its own and is producing yarn to be sold in the market. That being so, the argument of functional interdependence or integrality cannot be treated as valid.Besides, it is not disputed that when the knitting department was closed in 1948, the spinning department was not. If the two departments are functionally interdependent, the closure of the one without the closure of the other may need an explanation. The explanation which has appealed to respondents 1 and 2 apparently is that though the spinning work carried on by the appellant may, to some extent, be useful for the hosiery work, the major part of its work is carried on independently with an eye on the market and so the closure of the hosiery cannot and did not effect the continuance of the spinningis difficult to understand how an employer can make a distinction in the payment of minimum wages between one class of employees and another if both the classes of employees are engaged in different departments of the same establishment or concern. If there is unity of employment and unity of purpose and design as suggested by Sri Mehta, it is inconceivable that the employees engaged in two departments integral connected with each other and constituting one unit would be paid different minimum wages. What is true about the minimum wages and the dearness allowance is also true about the bonus. It appears that even in years in which the appellant made profits and actually paid bonus to the workmen employed in the spinning department, no bonus was paid to the employees engaged in the knitting department. That again can be explained and justified only on the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the employees in themay be the background of the dispute and its genesis, it is clear beyond doubt that the way in which the appellant has treated its employees in spinning as distinguished from its employees in knitting leads very strongly to the inference that the appellant treated the two departments, not as one unit but as separate units, each one functioning on its own and independently of the other.It is in the light of these circumstances that respondents 1 and 2 were not impressed by the relevant factors in which the appellant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, must be separately recognized under S. 11. We do not see how the appellant can successfully challenged the correctness of thisargument is that S. 11(1) does not authorized the splitting up of a concern into twoWe are not impressed by this argument. The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot be recognized as cotton textile industry because it is a concern engaged in spinning only which can be recognized under that category. If that is so, industrial activity of the appellant in relation to hosiery industry must be recognized separately from the textile undertaking. If one concern or company carries on several business or undertakes different types of industrial works, these business or works would amount to separate enterprises or undertakings and would have to be recognised as such. In fact, if the appellant itself has been treating the two kinds of work separately and has thus split up its whole business into two independent sections, it is not easy to understand why the Registrar cannot recognize the existence of two undertakings carried on by the appellant and treat the said undertakings as such. We see no justification for the assumption made by Sri Mehta that S. 11(1) does not permit the recognition of several undertakings carried on by the same company separately. It all depends on whether the undertakings are separate, distinct and independent of each other or are functionally integral to interdependent. In the former case, the registrar would be justified in treating the several undertakings separately while in the latter case, he may recognize all of them as one undertaking.There is one minor point to which reference may incidentally be made.In our opinion, there is no substance in this argument. As we have already pointed out, when respondent 2 passed his earlier order, an appeal was preferred against the said order by respondent 4 before respondent 1. That appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal. If respondent 4 had no right to make an appeal because he was not a party to the said proceedings, it is difficult to see how he can be precluded from making the present application on the ground of res judicata. At the highest, a plea of res judicata may perhaps be raised against respondents 3 but that would not be effective view of the fact that in the present case, an application has been made by respondent 4 as well. That is why Sri Mehta did not seriously press the point of res judicata before us. | 0 | 3,841 | 1,548 | ### Instruction:
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Sri Mehta, it is inconceivable that the employees engaged in two departments integral connected with each other and constituting one unit would be paid different minimum wages. What is true about the minimum wages and the dearness allowance is also true about the bonus. It appears that even in years in which the appellant made profits and actually paid bonus to the workmen employed in the spinning department, no bonus was paid to the employees engaged in the knitting department. That again can be explained and justified only on the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the employees in the other. It was suggested by Sri Mehta that the genesis of the present dispute lies in the anxiety of respondent 3 to take within its jurisdiction the employees engaged by the appellant in its spinning department. On the other hand, Sri Barot for respondents 3 and 4 contends that the present trouble arose because the appellant began to deny to its employees in the spinning department the benefits of all relevant conditions of service which were applicable to the employees in the textile industry in Ahmedabad. Whatever may be the background of the dispute and its genesis, it is clear beyond doubt that the way in which the appellant has treated its employees in spinning as distinguished from its employees in knitting leads very strongly to the inference that the appellant treated the two departments, not as one unit but as separate units, each one functioning on its own and independently of the other.It is in the light of these circumstances that respondents 1 and 2 were not impressed by the relevant factors in which the appellant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, must be separately recognized under S. 11. We do not see how the appellant can successfully challenged the correctness of this conclusion.7. There is one more point which yet remains to be considered. Sri Mehta argues that the impugned order recognizing two different undertaking under S. 11(1) is not justified by the provisions of the statute. Section 11 provides that the Registrar may, after making such inquiry as he deems fit, recognize for the purposes of the Act -(1) any concern in an industry to be an undertaking;(2) any section of an undertaking to be an occupation.8. The argument is that S. 11(1) does not authorized the splitting up of a concern into two undertakings. A concern, says Sri Mehta, is the whole of the concern or establishment run by the appellant and as such, it has to be recognized as one undertakings; in so far as the order under appeal treats the appellants concern as two undertakings, it is contrary to S. 11(1). We are not impressed by this argument. The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot be recognized as cotton textile industry because it is a concern engaged in spinning only which can be recognized under that category. If that is so, industrial activity of the appellant in relation to hosiery industry must be recognized separately from the textile undertaking. If one concern or company carries on several business or undertakes different types of industrial works, these business or works would amount to separate enterprises or undertakings and would have to be recognised as such. In fact, if the appellant itself has been treating the two kinds of work separately and has thus split up its whole business into two independent sections, it is not easy to understand why the Registrar cannot recognize the existence of two undertakings carried on by the appellant and treat the said undertakings as such. We see no justification for the assumption made by Sri Mehta that S. 11(1) does not permit the recognition of several undertakings carried on by the same company separately. It all depends on whether the undertakings are separate, distinct and independent of each other or are functionally integral to interdependent. In the former case, the registrar would be justified in treating the several undertakings separately while in the latter case, he may recognize all of them as one undertaking.There is one minor point to which reference may incidentally be made. It appears that before respondent 1, it was urged by the made by respondents 3 and 4 were barred by res judicata. The argument was that since respondent 2 had on an earlier occasion considered the merits of the case and refused to grant the request made by respondent 3 for recognizing the two undertakings separately, the same question could not be re-agitated again before the same authority. In our opinion, there is no substance in this argument. As we have already pointed out, when respondent 2 passed his earlier order, an appeal was preferred against the said order by respondent 4 before respondent 1. That appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal. If respondent 4 had no right to make an appeal because he was not a party to the said proceedings, it is difficult to see how he can be precluded from making the present application on the ground of res judicata. At the highest, a plea of res judicata may perhaps be raised against respondents 3 but that would not be effective view of the fact that in the present case, an application has been made by respondent 4 as well. That is why Sri Mehta did not seriously press the point of res judicata before us.9.
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denied the said allegation. But an advertisement published in the local daily Sandesh was produced by respondents 3 and 4 and it clearly showed that yarn of all counts was offered by the appellant for sale in the general market. Therefore, it would be idle to contend that the spinning work carried on in the spinning department is meant exclusively or solely for the hosiery department. If the spinning department produces yarn which is not useful or necessary for, and which cannot be used by, the hosiery section, the only inference is that the spinning department is working on its own and is producing yarn to be sold in the market. That being so, the argument of functional interdependence or integrality cannot be treated as valid.Besides, it is not disputed that when the knitting department was closed in 1948, the spinning department was not. If the two departments are functionally interdependent, the closure of the one without the closure of the other may need an explanation. The explanation which has appealed to respondents 1 and 2 apparently is that though the spinning work carried on by the appellant may, to some extent, be useful for the hosiery work, the major part of its work is carried on independently with an eye on the market and so the closure of the hosiery cannot and did not effect the continuance of the spinningis difficult to understand how an employer can make a distinction in the payment of minimum wages between one class of employees and another if both the classes of employees are engaged in different departments of the same establishment or concern. If there is unity of employment and unity of purpose and design as suggested by Sri Mehta, it is inconceivable that the employees engaged in two departments integral connected with each other and constituting one unit would be paid different minimum wages. What is true about the minimum wages and the dearness allowance is also true about the bonus. It appears that even in years in which the appellant made profits and actually paid bonus to the workmen employed in the spinning department, no bonus was paid to the employees engaged in the knitting department. That again can be explained and justified only on the basis that the appellant treated the two departments as distinct and separate and so the employees in the one got bonus and not the employees in themay be the background of the dispute and its genesis, it is clear beyond doubt that the way in which the appellant has treated its employees in spinning as distinguished from its employees in knitting leads very strongly to the inference that the appellant treated the two departments, not as one unit but as separate units, each one functioning on its own and independently of the other.It is in the light of these circumstances that respondents 1 and 2 were not impressed by the relevant factors in which the appellant relied in support of its plea of the unity of the two activities and came to the conclusion that the two activities were separate and as such, must be separately recognized under S. 11. We do not see how the appellant can successfully challenged the correctness of thisargument is that S. 11(1) does not authorized the splitting up of a concern into twoWe are not impressed by this argument. The appellant is undoubtedly engaged in the hosiery industry and that part of its business cannot be recognized as cotton textile industry because it is a concern engaged in spinning only which can be recognized under that category. If that is so, industrial activity of the appellant in relation to hosiery industry must be recognized separately from the textile undertaking. If one concern or company carries on several business or undertakes different types of industrial works, these business or works would amount to separate enterprises or undertakings and would have to be recognised as such. In fact, if the appellant itself has been treating the two kinds of work separately and has thus split up its whole business into two independent sections, it is not easy to understand why the Registrar cannot recognize the existence of two undertakings carried on by the appellant and treat the said undertakings as such. We see no justification for the assumption made by Sri Mehta that S. 11(1) does not permit the recognition of several undertakings carried on by the same company separately. It all depends on whether the undertakings are separate, distinct and independent of each other or are functionally integral to interdependent. In the former case, the registrar would be justified in treating the several undertakings separately while in the latter case, he may recognize all of them as one undertaking.There is one minor point to which reference may incidentally be made.In our opinion, there is no substance in this argument. As we have already pointed out, when respondent 2 passed his earlier order, an appeal was preferred against the said order by respondent 4 before respondent 1. That appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal was, however, dismissed on the ground that respondent 4 was not a party to the proceedings before respondent 4 was not a party to the proceedings before respondent 2 and, therefore, he could not prefer an appeal. If respondent 4 had no right to make an appeal because he was not a party to the said proceedings, it is difficult to see how he can be precluded from making the present application on the ground of res judicata. At the highest, a plea of res judicata may perhaps be raised against respondents 3 but that would not be effective view of the fact that in the present case, an application has been made by respondent 4 as well. That is why Sri Mehta did not seriously press the point of res judicata before us.
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Narendra Purshotam Umrao Etc Vs. B. B. Gujral & Ors | appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of the appellant.20. It is clear that Kunji Mohmed, in whose name the vessel Jamnaprasad BLS-61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40, 000/-. It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for his over-stay.21. During his period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah p ort but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded. It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed. Then it entered the aforesaid creek, some 20 kms. away from the factory, where it ran aground due to damage to the rudder.During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS-61 and a dairy c ontaining telephone Nos. 395279, 375943 and 361973 also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found. The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay. The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant. Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellants office telephone No. 395279 in Bombay with P. P. Babubhai.22. Obviously, the over-stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15, 44, 400/- . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling propensities of the appellant.23. It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked.24. | 0[ds]In the light of the circumstances appearing, it was conceded that the grounds for detention set out the facts with sufficient degree of particularity and that it did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. The order of detention was, therefore, not challenged on the ground that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or for the making of any effectiveis, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under s. 3 (1) of the Act. Nonetheless, the term "smuggling as defined in s. 2(e) of the Act has the same meaning as in s. 2(39)the Customs Act, 1962, which, when read with s. 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling or contraband goods as well as all persons dealing in such goods, etc. Though the provisions of cls. (i) and (ii) of sub-s(1) of s. 3 of the Act ma y operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given to the term smuggling in s. 2(e) of the Act, with a view to broaden the scope of preventive detention. Sub-section (1) of s. 3 of the Act provide s for the different grounds of detention. Clause (i) relates lo smuggling of goods, clause (ii) relates to abetting the smuggling of goods, clause (iii) relates to engaging in transporting or concealing or keeping smuggled goods, clause (v) relates to harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention i.e., to take in all such activities which result in accomplishment of smuggling of contraband goods.In a case like the present, where there is a widespread network employed by a person, it cannot be said that he is not engaged in the act of smuggling. It is accepted before us that the appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of theis clear that Kunji Mohmed, in whose name the vessel Jamnaprasad BLS-61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40, 000/-. It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for hishis period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah p ort but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded. It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed. Then it entered the aforesaid creek, some 20 kms. away from the factory, where it ran aground due to damage to the rudder.During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS-61 and a dairy c ontaining telephone Nos. 395279, 375943 and 361973 also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found. The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay. The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant. Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellants office telephone No. 395279 in Bombay with P. P.the over-stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15, 44, 400/- . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling propensities of theis quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properlyare afraid, the learned counsel is stretching the argument too fine. | 0 | 5,800 | 1,558 | ### Instruction:
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appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of the appellant.20. It is clear that Kunji Mohmed, in whose name the vessel Jamnaprasad BLS-61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40, 000/-. It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for his over-stay.21. During his period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah p ort but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded. It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed. Then it entered the aforesaid creek, some 20 kms. away from the factory, where it ran aground due to damage to the rudder.During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS-61 and a dairy c ontaining telephone Nos. 395279, 375943 and 361973 also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found. The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay. The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant. Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellants office telephone No. 395279 in Bombay with P. P. Babubhai.22. Obviously, the over-stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15, 44, 400/- . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling propensities of the appellant.23. It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked.24.
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that the appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of theis clear that Kunji Mohmed, in whose name the vessel Jamnaprasad BLS-61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40, 000/-. It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for hishis period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah p ort but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded. It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed. Then it entered the aforesaid creek, some 20 kms. away from the factory, where it ran aground due to damage to the rudder.During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS-61 and a dairy c ontaining telephone Nos. 395279, 375943 and 361973 also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found. The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay. The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant. Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellants office telephone No. 395279 in Bombay with P. P.the over-stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15, 44, 400/- . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling propensities of theis quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properlyare afraid, the learned counsel is stretching the argument too fine.
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Commissioner Of Income-Tax, Madras Vs. K. H. Chambers, Madras | reserved for himself some assets for the purpose of discharging the debts. He did so not for the purpose of running the same business by himself but only to help the son to carry on the same business more effectively. If so, it follows that on the facts found or admitted there is a clear case of succession in the present case.6. Learned counsel for the Revenue argued that whether there was succession or not was a pure question of fact and the High Court had no jurisdiction to question the correctness of the finding given by the Tribunal to the effect that there was no succession to the business.7. This Court in Meenakshi Mills Ltd. Madurai v. Commissioner of Income-tax, Madras, 1957-31 ITR 28 at pp. 40-41: 1956 SCR 691: ((S) AIR 1957 SC 49 at pp. 58-59) laid down the following propositions which are relevant to the question now raised before us:(a) Where an ultimate finding on an issue is an inference to be drawn from the facts found, on the application of any principle of law, there is a mixed question of law and fact, and the inference from the facts found is, in such a case, a question of law and is open to review by the Court.(b) Where the final determination of the issue does not involve an application of any principle of law, an inference from the facts is a pure inference of fact although it is drawn from other basic facts.(c) The proposition that an inference from proved facts is one of law is therefore correct in its application to mixed questions of law and fact, but not to pure questions of fact.8. In the case of pure questions of fact, the inference from proved facts being itself a question of fact can be attacked as being erroneous in law only if there is no evidence to support it or if it is perverse.9. This distinction between a question of law and a question of fact was also brought out by some of the English decisions cited at the Bar. In Bell v. National Provincial Bank of England Ltd., (1904) 5 Tax Cas 1 at pp. 10, 12 the Master of the Rolls observed:"The finding of the Commissioners upon that part of the case is this: "The Commissioners were of opinion that there was no succession within the meaning of the said 4th Rule." That is, as my brother Mathew has pointed out, not a finding in fact that there was no succession, but that the particular kind of succession which took place in this case was not a succession within the meaning of the 4th Rule. That is not a finding of fact, but a finding of law and construction based upon the fact that one existing Bank did acquire and take over, not for the purpose of extinction, but for the purpose of development, the existing business of another Bank existing in another place."So too, Mathew, L. J., stated:"No succession say, the Commissioners within the meaning of the said 4th Rule. That is the proposition of law we have to decide as distingushed from fact, and we are entitled to differ from that view."In Wilson and Barlow v. Chibbett, (1929) 14 Tax Cas 407 at pp. 412, 413 Rowlatt, J., observed:"The question was whether here there was a succession, which is a primary question of fact upon which of course, it is possible the Commissioners might take a very wrong view of the law and apply false law."The learned Judge concluded thus:"All I can say is that I do not see any way to say that I can discern any sort of error in law here in the way in which the Commissioners have dealt with the case. . . .. . . .. . . .. . . . . ."These observations imply that if correct tests are not applied in coming to a conclusion whether there is succession or not in a particular case, it can be re-opened by the High Court. In (1935) 19 Tax Cas 314, Finlay, J., after considering at some length the facts placed before him, refused to go further into the matter because the finding of succession was essentially a question of fact. But the facts in that case disclosed that the correct tests were applied and, therefore, no illegality was committed by the Commissioners.10. The said decisions did not lay down that in every case the finding of succession is one of fact. Indeed, the first two decisions clearly maintained that a finding on a question whether a succession is one within the meaning of a particular provision or whether it is vitiated by any error of law is not final. The English view is also in accord with that expressed by this Court.11. The question, therefore, is whether a finding that a person succeeded another in his business within the meaning of S. 25 (4) of the Act is a finding of fact. The expression "succession", as stated by Simon in his book on Income-tax, has acquired a somewhat artificial meaning. The cases we have considered supra and similar others have laid down some tests, though not exhaustive, to ascertain whether there is succession in a given case or not. The tests of change of ownership, integrity, identity and continuity of a business have to be satisfied before it can be said that a person "succeeded" to the business of another. Unless the facts found by the Tribunal satisfy the said tests, the finding cannot be conclusive. The tests crystallized by decisions have given a legal content to the expression "succession" within the meaning of S. 25(4) of the Act and whether facts proved satisfy those tests is a mixed question of law and fact. If so, it follows that a question of law arose out of the Tribunals order and the High Court has jurisdiction to ascertain the correctness of the finding given by the Tribunal on the question of succession. | 0[ds]This is an authority for the position that if a business was taken over as a going concern the mere fact that some assets, which were not required by the successor for carrying on of the business, were not transferred to him would not make it any the less a succession in law. It is not necessary to multiply decisions. Succession involves change of ownership; that is, the transferor goes out and the transferee comes in; it connotes that the whole business is transferred; it also implies that substantially the identity and the continuity of the business are preserved. If there is a transfer of a business, any arrangement between the transferor and the transferee in respect of some of the assets and liabilities not with a view to enable the transferor to run a part of the business transferred but to enable the transferee to run the business unhampered by the load of debts or for any other appropriate collateral purpose cannot detract from the totality of succession.5. In the present case, the export business of the father was carried on by the son. The whole of the business was transferred, the identity was preserved and the same business was continued. The father reserved for himself some assets for the purpose of discharging the debts. He did so not for the purpose of running the same business by himself but only to help the son to carry on the same business more effectively. If so, it follows that on the facts found or admitted there is a clear case of succession in the present case.In the case of pure questions of fact, the inference from proved facts being itself a question of fact can be attacked as being erroneous in law only if there is no evidence to support it or if it is perverse.The said decisions did not lay down that in every case the finding of succession is one of fact. Indeed, the first two decisions clearly maintained that a finding on a question whether a succession is one within the meaning of a particular provision or whether it is vitiated by any error of law is not final. The English view is also in accord with that expressed by this Court.11. The question, therefore, is whethera finding that a person succeeded another in his business within the meaning of S. 25 (4) of the Act is a finding offact. The expression "succession", as stated by Simon in his book on Income-tax, has acquired a somewhat artificial meaning. The cases we have considered supra and similar others have laid down some tests, though not exhaustive, to ascertain whether there is succession in a given case or not. The tests of change of ownership, integrity, identity and continuity of a business have to be satisfied before it can be said that a person "succeeded" to the business of another. Unless the facts found by the Tribunal satisfy the said tests, the finding cannot be conclusive. The tests crystallized by decisions have given a legal content to the expression "succession" within the meaning of S. 25(4) of the Act and whether facts proved satisfy those tests is a mixed question of law and fact. If so, it follows that a question of law arose out of the Tribunals order and the High Court has jurisdiction to ascertain the correctness of the finding given by the Tribunal on the question ofis an authority for the position that if a business was taken over as a going concern the mere fact that some assets, which were not required by the successor for carrying on of the business, were not transferred to him would not make it any the less a succession in law. It is not necessary to multiply decisions. Succession involves change of ownership; that is, the transferor goes out and the transferee comes in; it connotes that the whole business is transferred; it also implies that substantially the identity and the continuity of the business are preserved. If there is a transfer of a business, any arrangement between the transferor and the transferee in respect of some of the assets and liabilities not with a view to enable the transferor to run a part of the business transferred but to enable the transferee to run the business unhampered by the load of debts or for any other appropriate collateral purpose cannot detract from the totality of succession. | 0 | 4,236 | 806 | ### Instruction:
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reserved for himself some assets for the purpose of discharging the debts. He did so not for the purpose of running the same business by himself but only to help the son to carry on the same business more effectively. If so, it follows that on the facts found or admitted there is a clear case of succession in the present case.6. Learned counsel for the Revenue argued that whether there was succession or not was a pure question of fact and the High Court had no jurisdiction to question the correctness of the finding given by the Tribunal to the effect that there was no succession to the business.7. This Court in Meenakshi Mills Ltd. Madurai v. Commissioner of Income-tax, Madras, 1957-31 ITR 28 at pp. 40-41: 1956 SCR 691: ((S) AIR 1957 SC 49 at pp. 58-59) laid down the following propositions which are relevant to the question now raised before us:(a) Where an ultimate finding on an issue is an inference to be drawn from the facts found, on the application of any principle of law, there is a mixed question of law and fact, and the inference from the facts found is, in such a case, a question of law and is open to review by the Court.(b) Where the final determination of the issue does not involve an application of any principle of law, an inference from the facts is a pure inference of fact although it is drawn from other basic facts.(c) The proposition that an inference from proved facts is one of law is therefore correct in its application to mixed questions of law and fact, but not to pure questions of fact.8. In the case of pure questions of fact, the inference from proved facts being itself a question of fact can be attacked as being erroneous in law only if there is no evidence to support it or if it is perverse.9. This distinction between a question of law and a question of fact was also brought out by some of the English decisions cited at the Bar. In Bell v. National Provincial Bank of England Ltd., (1904) 5 Tax Cas 1 at pp. 10, 12 the Master of the Rolls observed:"The finding of the Commissioners upon that part of the case is this: "The Commissioners were of opinion that there was no succession within the meaning of the said 4th Rule." That is, as my brother Mathew has pointed out, not a finding in fact that there was no succession, but that the particular kind of succession which took place in this case was not a succession within the meaning of the 4th Rule. That is not a finding of fact, but a finding of law and construction based upon the fact that one existing Bank did acquire and take over, not for the purpose of extinction, but for the purpose of development, the existing business of another Bank existing in another place."So too, Mathew, L. J., stated:"No succession say, the Commissioners within the meaning of the said 4th Rule. That is the proposition of law we have to decide as distingushed from fact, and we are entitled to differ from that view."In Wilson and Barlow v. Chibbett, (1929) 14 Tax Cas 407 at pp. 412, 413 Rowlatt, J., observed:"The question was whether here there was a succession, which is a primary question of fact upon which of course, it is possible the Commissioners might take a very wrong view of the law and apply false law."The learned Judge concluded thus:"All I can say is that I do not see any way to say that I can discern any sort of error in law here in the way in which the Commissioners have dealt with the case. . . .. . . .. . . .. . . . . ."These observations imply that if correct tests are not applied in coming to a conclusion whether there is succession or not in a particular case, it can be re-opened by the High Court. In (1935) 19 Tax Cas 314, Finlay, J., after considering at some length the facts placed before him, refused to go further into the matter because the finding of succession was essentially a question of fact. But the facts in that case disclosed that the correct tests were applied and, therefore, no illegality was committed by the Commissioners.10. The said decisions did not lay down that in every case the finding of succession is one of fact. Indeed, the first two decisions clearly maintained that a finding on a question whether a succession is one within the meaning of a particular provision or whether it is vitiated by any error of law is not final. The English view is also in accord with that expressed by this Court.11. The question, therefore, is whether a finding that a person succeeded another in his business within the meaning of S. 25 (4) of the Act is a finding of fact. The expression "succession", as stated by Simon in his book on Income-tax, has acquired a somewhat artificial meaning. The cases we have considered supra and similar others have laid down some tests, though not exhaustive, to ascertain whether there is succession in a given case or not. The tests of change of ownership, integrity, identity and continuity of a business have to be satisfied before it can be said that a person "succeeded" to the business of another. Unless the facts found by the Tribunal satisfy the said tests, the finding cannot be conclusive. The tests crystallized by decisions have given a legal content to the expression "succession" within the meaning of S. 25(4) of the Act and whether facts proved satisfy those tests is a mixed question of law and fact. If so, it follows that a question of law arose out of the Tribunals order and the High Court has jurisdiction to ascertain the correctness of the finding given by the Tribunal on the question of succession.
### Response:
0
### Explanation:
This is an authority for the position that if a business was taken over as a going concern the mere fact that some assets, which were not required by the successor for carrying on of the business, were not transferred to him would not make it any the less a succession in law. It is not necessary to multiply decisions. Succession involves change of ownership; that is, the transferor goes out and the transferee comes in; it connotes that the whole business is transferred; it also implies that substantially the identity and the continuity of the business are preserved. If there is a transfer of a business, any arrangement between the transferor and the transferee in respect of some of the assets and liabilities not with a view to enable the transferor to run a part of the business transferred but to enable the transferee to run the business unhampered by the load of debts or for any other appropriate collateral purpose cannot detract from the totality of succession.5. In the present case, the export business of the father was carried on by the son. The whole of the business was transferred, the identity was preserved and the same business was continued. The father reserved for himself some assets for the purpose of discharging the debts. He did so not for the purpose of running the same business by himself but only to help the son to carry on the same business more effectively. If so, it follows that on the facts found or admitted there is a clear case of succession in the present case.In the case of pure questions of fact, the inference from proved facts being itself a question of fact can be attacked as being erroneous in law only if there is no evidence to support it or if it is perverse.The said decisions did not lay down that in every case the finding of succession is one of fact. Indeed, the first two decisions clearly maintained that a finding on a question whether a succession is one within the meaning of a particular provision or whether it is vitiated by any error of law is not final. The English view is also in accord with that expressed by this Court.11. The question, therefore, is whethera finding that a person succeeded another in his business within the meaning of S. 25 (4) of the Act is a finding offact. The expression "succession", as stated by Simon in his book on Income-tax, has acquired a somewhat artificial meaning. The cases we have considered supra and similar others have laid down some tests, though not exhaustive, to ascertain whether there is succession in a given case or not. The tests of change of ownership, integrity, identity and continuity of a business have to be satisfied before it can be said that a person "succeeded" to the business of another. Unless the facts found by the Tribunal satisfy the said tests, the finding cannot be conclusive. The tests crystallized by decisions have given a legal content to the expression "succession" within the meaning of S. 25(4) of the Act and whether facts proved satisfy those tests is a mixed question of law and fact. If so, it follows that a question of law arose out of the Tribunals order and the High Court has jurisdiction to ascertain the correctness of the finding given by the Tribunal on the question ofis an authority for the position that if a business was taken over as a going concern the mere fact that some assets, which were not required by the successor for carrying on of the business, were not transferred to him would not make it any the less a succession in law. It is not necessary to multiply decisions. Succession involves change of ownership; that is, the transferor goes out and the transferee comes in; it connotes that the whole business is transferred; it also implies that substantially the identity and the continuity of the business are preserved. If there is a transfer of a business, any arrangement between the transferor and the transferee in respect of some of the assets and liabilities not with a view to enable the transferor to run a part of the business transferred but to enable the transferee to run the business unhampered by the load of debts or for any other appropriate collateral purpose cannot detract from the totality of succession.
|
Pyare Lal Sharma Vs. Managing Director and Ors | means almost wholetime in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regulation 16.14 concerning the employees of companies/corporations/public undertakings is within the competence of the management. 18. We do not agree with the Division Bench of the High Court that three months notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14. It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b). Regarding (c) and (d), the regulation provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof. 19. We may now take up the third point. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharmas category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director became the appointing authority. Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guarantee on parity. There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India. An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of Sharmas services the Managing Director had the powers of appointing authority, he was legally competent to terminate Sharmas services. 20. The learned Single Judge allowed the writ petition on the fourth point though the same did not find favour with the Division Bench. Grounds (c) and (d) in Regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee. Once it is established to the satisfaction of the authority that an employee remains on unauthorised absence from duty, the only action which can be taken is the termination of his services. Similar is the case when an employee takes part in the active politics. The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining on unauthorised absence from duty. This Court in State of Orissa v. Vidyabhushan Mohapatra (1963 Supp 1 SCR 648) and Railway Board v. Niranjan Singh ((1969) 1 SCR 548) has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant. Thus there is no force in this argument. 21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show-cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show-cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside. 22. When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits. This case has a chequered history. From 1976 onwards there has been continuous litigation and mistrust between the parties. The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation. In view of the facts and circumstances of this case we order that 60 per cent of the back wages be paid to Sharma. Money already received by Sharma under order of this Court or the High Court shall be adjusted and the balance paid to him. If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him. | 1[ds]15. Mr. Pyare Lal Sharma appeared in person and argued his case. He has been of no assistance to us. During the course of arguments we suggested to Mr. Sharma to engage a counsel which he declined. We also repeatedly offered to him to have the service of a counsel engaged by the court but he did not agree and insisted on arguing the case himself17. We see no arbitrariness in Regulation 16.14. The regulation has been framed to meet four different eventualities which may arise during the service of a company employee. Under this regulation services of an employee may be terminated (a) if his post is abolished or (b) if he is declared on medical grounds to be unfit for further service or (c) he remains on unauthorised absence or (d) if he takes part in active politics. In the case of (a) and (b) three months notice to a permanent employee and one month notice to temporary employee or pay in lieu thereof is to be given. In case of (c) and (d) a show-cause notice, to explain his conduct satisfactorily, is to be given. So far as grounds (a) and (b) are concerned there cannot be any objection. When a post is abolished or an employee is declared medically unfit for further service the termination is the obvious consequence. In the case of abolition of post the employee may be adjusted in some other post if legally permitted. Ground (c) has also a specific purpose. "Remains on unauthorised absence" means an employee who has not respect for discipline and absents himself repeatedly and without any justification or the one who remains absent for a sufficiently long period. The object and purport of the regulation is to maintain efficiency in the service of the company. The provision of show-cause notice is a sufficient safeguard against arbitrary action. Regarding ground (d) "active politics" means almost wholetime in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regulation 16.14 concerning the employees of companies/corporations/public undertakings is within the competence of the management18. We do not agree with the Division Bench of the High Court that three months notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14. It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b). Regarding (c) and (d), the regulation provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof19. We may now take up the third point. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharmas category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director became the appointing authority. Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guarantee on parity. There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India. An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of Sharmas services the Managing Director had the powers of appointing authority, he was legally competent to terminate Sharmas services20. The learned Single Judge allowed the writ petition on the fourth point though the same did not find favour with the Division Bench. Grounds (c) and (d) in Regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee. Once it is established to the satisfaction of the authority that an employee remains on unauthorised absence from duty, the only action which can be taken is the termination of his services. Similar is the case when an employee takes part in the active politics. The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining on unauthorised absence from duty. This Court in State of Orissa v. Vidyabhushan Mohapatra (1963 Supp 1 SCR 648) and Railway Board v. Niranjan Singh ((1969) 1 SCR 548) has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant. Thus there is no force in this argument21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show-cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show-cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside22. When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits. This case has a chequered history. From 1976 onwards there has been continuous litigation and mistrust between the parties. The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation. In view of the facts and circumstances of this case we order that 60 per cent of the back wages be paid to Sharma. Money already received by Sharma under order of this Court or the High Court shall be adjusted and the balance paid to him. If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him | 1 | 3,549 | 1,468 | ### 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:
means almost wholetime in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regulation 16.14 concerning the employees of companies/corporations/public undertakings is within the competence of the management. 18. We do not agree with the Division Bench of the High Court that three months notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14. It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b). Regarding (c) and (d), the regulation provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof. 19. We may now take up the third point. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharmas category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director became the appointing authority. Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guarantee on parity. There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India. An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of Sharmas services the Managing Director had the powers of appointing authority, he was legally competent to terminate Sharmas services. 20. The learned Single Judge allowed the writ petition on the fourth point though the same did not find favour with the Division Bench. Grounds (c) and (d) in Regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee. Once it is established to the satisfaction of the authority that an employee remains on unauthorised absence from duty, the only action which can be taken is the termination of his services. Similar is the case when an employee takes part in the active politics. The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining on unauthorised absence from duty. This Court in State of Orissa v. Vidyabhushan Mohapatra (1963 Supp 1 SCR 648) and Railway Board v. Niranjan Singh ((1969) 1 SCR 548) has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant. Thus there is no force in this argument. 21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show-cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show-cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside. 22. When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits. This case has a chequered history. From 1976 onwards there has been continuous litigation and mistrust between the parties. The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation. In view of the facts and circumstances of this case we order that 60 per cent of the back wages be paid to Sharma. Money already received by Sharma under order of this Court or the High Court shall be adjusted and the balance paid to him. If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him.
### Response:
1
### Explanation:
Regarding ground (d) "active politics" means almost wholetime in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds (c) and (d) in Regulation 16.14 concerning the employees of companies/corporations/public undertakings is within the competence of the management18. We do not agree with the Division Bench of the High Court that three months notice or pay in lieu thereof was to be given to Sharma under Regulation 16.14. It is clear from the plain language of the regulation that three months notice or pay in lieu, is only required when termination is under ground (a) or (b). Regarding (c) and (d), the regulation provides for a 15 days notice to explain the conduct satisfactorily and there is no requirement of any other notice or pay in lieu thereof19. We may now take up the third point. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharmas category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director became the appointing authority. Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311(1) of the Constitution of India nor the extension of that guarantee on parity. There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under Article 311(1) of the Constitution of India. An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of Sharmas services the Managing Director had the powers of appointing authority, he was legally competent to terminate Sharmas services20. The learned Single Judge allowed the writ petition on the fourth point though the same did not find favour with the Division Bench. Grounds (c) and (d) in Regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee. Once it is established to the satisfaction of the authority that an employee remains on unauthorised absence from duty, the only action which can be taken is the termination of his services. Similar is the case when an employee takes part in the active politics. The finding in the termination order regarding taking part in active politics cannot be sustained because no notice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining on unauthorised absence from duty. This Court in State of Orissa v. Vidyabhushan Mohapatra (1963 Supp 1 SCR 648) and Railway Board v. Niranjan Singh ((1969) 1 SCR 548) has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is not for the courts to consider whether that ground alone would have weighed with the authority punishing the public servant. Thus there is no force in this argument21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show-cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show-cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside22. When the termination order is set aside by the courts normally the servant becomes entitled to back wages and other consequential benefits. This case has a chequered history. From 1976 onwards there has been continuous litigation and mistrust between the parties. The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation. In view of the facts and circumstances of this case we order that 60 per cent of the back wages be paid to Sharma. Money already received by Sharma under order of this Court or the High Court shall be adjusted and the balance paid to him. If the money already paid to Sharma is more than what we have ordered then there shall be no recovery from him
|
Thansingh Nathmal & Others Vs. The Superintendent of Taxes, Dhubri & Others | brought into the market for sale, that the goods sold were within the Province on the dates of contracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was not "altogether unjustified", nor could it be said that the Commissioner and the other taxing authorities "were not quite conscious of" the requirements which attracted the application of the Explanation to S. 2(12) and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were competent to enter upon.12. In these appeals Mr. Setalvad on behalf of the appellants contends that there is clear evidence on the record to show that even applying the test laid down by the Commissioner some of the contracts of sale were made before the goods were marketable and therefore the view taken by the taxing authorities that the goods were at the date of the contract in existence within the Province of Assam was "without any foundation". Counsel also submitted that some of the contracts related to jute grown in Pakistan and with respect of those contract also the assumption made by the Commissioner that the goods were within the State of Assam at the date of the contract of sale could not be warranted. Counsel then said that the description of the goods in the contracts of sale indicated that they related to bales whereas the contracts for purchase by the appellants were in respect of loose jute and as the goods purchased were not identical or ascertainable with reference to the contracts of sale made by the appellants, liability to pay tax was not attracted under S. 2(12) of the Act. We are unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and no evidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the contracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were "speculative" to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the situs of the goods at the dates of the contracts of sale, prescribed by S. 2(12) so as to make the price liable to be included in the taxable turnover. The legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are not proved, the proceedings must end.13. If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Commissioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law.14. Assuming that there is some substance in the contention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as "speculative", it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act.15. We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of facts which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed.16. The constitutional question on which certificate was granted does not need consideration in any detail. By the Explanation to S. 2(12) of the Act notwithstanding anything to the contrary contained in the provisions of the Indian Sale of Goods Act, 1930, a sale is deemed to be complete when the goods are actually within the State of Assam at the time when the contract of sale is made, irrespective of the place where the contract is made. Under the Sale of Goods Act, 1930, in the absence of a contract to the contrary a sale is complete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the situs of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the Province at the date of the contract for the purposes of levying tax on sales. The Legislature has thereby not overstepped the limits of its authority: Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCR 1355 : (AIR 1958 SC 452 ). No argument has therefore been advanced before us to support the plea of unconstitutionality.17. | 0[ds]We have heard counsel for the appellants at great length upon this application for leave to appeal on grounds other than constitutional on which the certificates were granted by the High Court. After carefully considering the arguments, we are of the view that no case has been made out for acceding to that request. A person appealing to this Court under Art. 132 of the Constitution may not challenge the correctness or propriety of the decision appealed against on grounds other than those on which the certificate is granted, unless this Court grants him leave to raise other questions. Such leave is generally granted where the trial before the High Court has resulted in grave miscarriage of justice or where the appeal raises such substantial questions, that on an application made to this Court under Art. 136 of the Constitution leave would be granted to the applicant to appeal against the decision on those questions.In the present case the appellants had the right to move the Commissioner to refer a case to the High Court under S. 32 of the Act, and to move the High Court if the Commissioner refused to refer the case. But they did not do so and moved the High Court in its jurisdiction under Art. 226 of the Constitution, and invited the High Court to re-open the decision of the taxing authorities on question of fact, which jurisdiction by the statute constituting them is exclusively vested in the taxing authorities. This they did without even raising the questions before the Superintendent of taxes and the Assistant Commissioner.The appellants who are dealers registered under the Assam Sales Tax Act submitted their returns to the Superintendent of Taxes, but failed when called upon to produce their books of account and other evidence in support of their returns. Even before the Assistant Commissioner, they produced some but not all their book account and evidence demanded by the Superintendent. By the Explanation to S. 2(12) of the Act the expression sale notwithstanding anything contained inthe Indian Sale of Goods Act, 1930, includes sale of any goods which are actually in the Province at the time when the contract of sale in respect thereof is made, irrespective of the place where the said contract is made and such sales are deemed for the purposes of the Act to have taken place in the province. Under the Indian Sale of Goods Act, a sale takes place when property in the goods passes. But for the purposes of the Assam Sales Tax Act situation of the goods is seized by the Legislature for the purpose of fictionally regarding the sale as having taken place within the Province of Assam if at the time of the contract of sale the goods are within the Province. Liability to sales-tax in respect of the goods where the transfer in the property of the goods where the transfer in the property of the goods has taken place outside the Province of Assam undoubtedly arose if the conditions prescribed by the Explanation, exist: viz., the goods are actually in the Province when the contract of sale is made and not otherwise. But the question whether the goods at the date of the contract of sale were actually in the Province is a question of fact which had to be determined by the sales-tax authorities. Before the Superintendent of Taxes liability to pay tax was challenged but it does not appear to have been contended that at the time of the contract of sale, the goods were not actually within the Province, and no such contention appears to have been even raised before the Assistant Commissioner of Taxes. Before the Commissioner in the revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnover were not within the Province at the time of the contract of sale and therefore the price of those goods could not be taken into account in computing the taxable turnover. The Commissioner held having regard to the "time-table of cultivation of jute" and the time when the jute is brought into the market for sale, that the goods sold were within the Province on the dates of contracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was not "altogether unjustified", nor could it be said that the Commissioner and the other taxing authorities "were not quite conscious of" the requirements which attracted the application of the Explanation to S. 2(12) and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were competent to enterare unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and no evidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the contracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were "speculative" to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the situs of the goods at the dates of the contracts of sale, prescribed by S. 2(12) so as to make the price liable to be included in the taxable turnover. The legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are not proved, the proceedings must end.If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Commissioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law.Assuming that there is some substance in the contention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as "speculative", it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act.We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of facts which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed.The constitutional question on which certificate was granted does not need consideration in any detail. By the Explanation to S. 2(12) of the Act notwithstanding anything to the contrary contained in the provisions ofthe Indian Sale of Goods Act, 1930, a sale is deemed to be complete when the goods are actually within the State of Assam at the time when the contract of sale is made, irrespective of the place where the contract is made. Underthe Sale of Goods Act, 1930, in the absence of a contract to the contrary a sale is complete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the situs of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the Province at the date of the contract for the purposes of levying tax on sales. The Legislature has thereby not overstepped the limits of its authority: Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCR 1355 : (AIR 1958 SC 452 ). No argument has therefore been advanced before us to support the plea of unconstitutionality. | 0 | 4,069 | 1,594 | ### Instruction:
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brought into the market for sale, that the goods sold were within the Province on the dates of contracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was not "altogether unjustified", nor could it be said that the Commissioner and the other taxing authorities "were not quite conscious of" the requirements which attracted the application of the Explanation to S. 2(12) and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were competent to enter upon.12. In these appeals Mr. Setalvad on behalf of the appellants contends that there is clear evidence on the record to show that even applying the test laid down by the Commissioner some of the contracts of sale were made before the goods were marketable and therefore the view taken by the taxing authorities that the goods were at the date of the contract in existence within the Province of Assam was "without any foundation". Counsel also submitted that some of the contracts related to jute grown in Pakistan and with respect of those contract also the assumption made by the Commissioner that the goods were within the State of Assam at the date of the contract of sale could not be warranted. Counsel then said that the description of the goods in the contracts of sale indicated that they related to bales whereas the contracts for purchase by the appellants were in respect of loose jute and as the goods purchased were not identical or ascertainable with reference to the contracts of sale made by the appellants, liability to pay tax was not attracted under S. 2(12) of the Act. We are unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and no evidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the contracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were "speculative" to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the situs of the goods at the dates of the contracts of sale, prescribed by S. 2(12) so as to make the price liable to be included in the taxable turnover. The legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are not proved, the proceedings must end.13. If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Commissioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law.14. Assuming that there is some substance in the contention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as "speculative", it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act.15. We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of facts which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed.16. The constitutional question on which certificate was granted does not need consideration in any detail. By the Explanation to S. 2(12) of the Act notwithstanding anything to the contrary contained in the provisions of the Indian Sale of Goods Act, 1930, a sale is deemed to be complete when the goods are actually within the State of Assam at the time when the contract of sale is made, irrespective of the place where the contract is made. Under the Sale of Goods Act, 1930, in the absence of a contract to the contrary a sale is complete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the situs of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the Province at the date of the contract for the purposes of levying tax on sales. The Legislature has thereby not overstepped the limits of its authority: Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCR 1355 : (AIR 1958 SC 452 ). No argument has therefore been advanced before us to support the plea of unconstitutionality.17.
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the Province of Assam undoubtedly arose if the conditions prescribed by the Explanation, exist: viz., the goods are actually in the Province when the contract of sale is made and not otherwise. But the question whether the goods at the date of the contract of sale were actually in the Province is a question of fact which had to be determined by the sales-tax authorities. Before the Superintendent of Taxes liability to pay tax was challenged but it does not appear to have been contended that at the time of the contract of sale, the goods were not actually within the Province, and no such contention appears to have been even raised before the Assistant Commissioner of Taxes. Before the Commissioner in the revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnover were not within the Province at the time of the contract of sale and therefore the price of those goods could not be taken into account in computing the taxable turnover. The Commissioner held having regard to the "time-table of cultivation of jute" and the time when the jute is brought into the market for sale, that the goods sold were within the Province on the dates of contracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was not "altogether unjustified", nor could it be said that the Commissioner and the other taxing authorities "were not quite conscious of" the requirements which attracted the application of the Explanation to S. 2(12) and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were competent to enterare unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and no evidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the contracts could not have been in existence within the Province at the date of the respective contracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were "speculative" to be agitated. The appellants now seek to plead that the taxing authorities were in error in holding that the goods conformed to the conditions as to the situs of the goods at the dates of the contracts of sale, prescribed by S. 2(12) so as to make the price liable to be included in the taxable turnover. The legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore contemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are not taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are not proved, the proceedings must end.If, however, the adjudication of the Commissioner is vitiated because there is no evidence to support it or it is based on conjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been no fair trial, the High Court may undoubtedly advise the Commissioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law.Assuming that there is some substance in the contention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as "speculative", it was open to them to resort to the machinery provided by the Act, and having failed to do so, they could not ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act.We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of facts which were not canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed.The constitutional question on which certificate was granted does not need consideration in any detail. By the Explanation to S. 2(12) of the Act notwithstanding anything to the contrary contained in the provisions ofthe Indian Sale of Goods Act, 1930, a sale is deemed to be complete when the goods are actually within the State of Assam at the time when the contract of sale is made, irrespective of the place where the contract is made. Underthe Sale of Goods Act, 1930, in the absence of a contract to the contrary a sale is complete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the situs of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the Province at the date of the contract for the purposes of levying tax on sales. The Legislature has thereby not overstepped the limits of its authority: Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCR 1355 : (AIR 1958 SC 452 ). No argument has therefore been advanced before us to support the plea of unconstitutionality.
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National Insurance Company Limited Vs. State Bank of India & Others | 1. Heard the counsel for the parties. Leave granted 2. This appeal is directed against the judgment of a learned Single Judge of the Punjab and Haryana High Court allowing the second appeal preferred by the first respondent. The plaintiff-respondent, state Bank of India had financed the purchase of a truck by the first defendant. Defendants 2 and 3 were guarantors. On the first defendant failing to repay the loan as stipulated, the plaintiff-Bank instituted a suit for recovering the amount against defendants 1 to 3. Pending the suit the truck got burnt whereupon the plaintiff impleaded the appellant herein, National Insurance Company Limited, as the fourth defendant. The appellants ase was that the first defendant had deliberately and intentionally set fire to the truck and, therefore, the Insurance Company is not liable to pay the insurance amount. On a consideration of the evidence placed before, it, the trial court held that fourth defendant (appellant herein) has failed to establish that the truck was set on fire deliberately by the first defendant. In view of the Insurance Policy issued by the fourth defendant, the suit was decreed in favour of the Bank making the Insurance Company also liable. Thereupon the Insurance Company (appellant herein) filed an appeal which was allowed by the first appellate court which found that the truck was set on fire deliberately by the first defendant. The plaintiff-company then preferred a second appeal in the High Court against all the four defendants. The learned Judge found that the appellate court was in error in holding that the truck was deliberately set on fire by the first defendant. Accordingly it allowed the appeal holding that appellate court was in error in exonerating the Insurance Company from the liability to the decretal amount3. In our opinion the question at issue is purely factual in nature. Even if the finding of fact recorded by the first appellate court was erroneous, the High Court could not have interfered with the same. Even otherwise, we are of the opinion, on a consideration of relevant evidence, that the finding of the appellate court cannot be characterised as either erroneous or arbitrary. The conduct of the driver soon after the truck allegedly caught fire is wholly inconsistent with the theory of accidental fire. | 1[ds]In view of the Insurance Policy issued by the fourth defendant, the suit was decreed in favour of the Bank making the Insurance Company also liable. Thereupon the Insurance Company (appellant herein) filed an appeal which was allowed by the first appellate court which found that the truck was set on fire deliberately by the first defendant. Thethen preferred a second appeal in the High Court against all the four defendants. The learned Judge found that the appellate court was in error in holding that the truck was deliberately set on fire by the first defendant. Accordingly it allowed the appeal holding that appellate court was in error in exonerating the Insurance Company from the liability to the decretal amount3. In our opinion the question at issue is purely factual in nature. Even if the finding of fact recorded by the first appellate court was erroneous, the High Court could not have interfered with the same. Even otherwise, we are of the opinion, on a consideration of relevant evidence, that the finding of the appellate court cannot be characterised as either erroneous or arbitrary. The conduct of the driver soon after the truck allegedly caught fire is wholly inconsistent with the theory of accidental fire. | 1 | 416 | 226 | ### Instruction:
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1. Heard the counsel for the parties. Leave granted 2. This appeal is directed against the judgment of a learned Single Judge of the Punjab and Haryana High Court allowing the second appeal preferred by the first respondent. The plaintiff-respondent, state Bank of India had financed the purchase of a truck by the first defendant. Defendants 2 and 3 were guarantors. On the first defendant failing to repay the loan as stipulated, the plaintiff-Bank instituted a suit for recovering the amount against defendants 1 to 3. Pending the suit the truck got burnt whereupon the plaintiff impleaded the appellant herein, National Insurance Company Limited, as the fourth defendant. The appellants ase was that the first defendant had deliberately and intentionally set fire to the truck and, therefore, the Insurance Company is not liable to pay the insurance amount. On a consideration of the evidence placed before, it, the trial court held that fourth defendant (appellant herein) has failed to establish that the truck was set on fire deliberately by the first defendant. In view of the Insurance Policy issued by the fourth defendant, the suit was decreed in favour of the Bank making the Insurance Company also liable. Thereupon the Insurance Company (appellant herein) filed an appeal which was allowed by the first appellate court which found that the truck was set on fire deliberately by the first defendant. The plaintiff-company then preferred a second appeal in the High Court against all the four defendants. The learned Judge found that the appellate court was in error in holding that the truck was deliberately set on fire by the first defendant. Accordingly it allowed the appeal holding that appellate court was in error in exonerating the Insurance Company from the liability to the decretal amount3. In our opinion the question at issue is purely factual in nature. Even if the finding of fact recorded by the first appellate court was erroneous, the High Court could not have interfered with the same. Even otherwise, we are of the opinion, on a consideration of relevant evidence, that the finding of the appellate court cannot be characterised as either erroneous or arbitrary. The conduct of the driver soon after the truck allegedly caught fire is wholly inconsistent with the theory of accidental fire.
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In view of the Insurance Policy issued by the fourth defendant, the suit was decreed in favour of the Bank making the Insurance Company also liable. Thereupon the Insurance Company (appellant herein) filed an appeal which was allowed by the first appellate court which found that the truck was set on fire deliberately by the first defendant. Thethen preferred a second appeal in the High Court against all the four defendants. The learned Judge found that the appellate court was in error in holding that the truck was deliberately set on fire by the first defendant. Accordingly it allowed the appeal holding that appellate court was in error in exonerating the Insurance Company from the liability to the decretal amount3. In our opinion the question at issue is purely factual in nature. Even if the finding of fact recorded by the first appellate court was erroneous, the High Court could not have interfered with the same. Even otherwise, we are of the opinion, on a consideration of relevant evidence, that the finding of the appellate court cannot be characterised as either erroneous or arbitrary. The conduct of the driver soon after the truck allegedly caught fire is wholly inconsistent with the theory of accidental fire.
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N. T. Patel And Company Vs. Commissioner Of Income-Tax, Madras | referred to the High Court for its opinion:-"Whether the assessee firm is entitled to registration u/s 26-A of the Income-tax Act for the assessment year 1955-56."The High Court held that under S. 26-A of the Act the factual existence in the year of account of an instrument of partnership was necessary, a requisite which, in the present case, was lacking and therefore the provisions of S. 26-A were not satisfied and that the specification of shares only took place on September 17, 1955, when the deed of rectification was executed. The question was therefore answered in the negative. Against this judgment and order the appellate has come in appeal to this court by certificate of the High Court.4. It was contended that Cls. 9, 11, 34 and 41(a) sufficiently specified the shares of the partners and satisfied the requirements of the law. These clauses were as follows:-Cl. 9. "Such extra contribution made by the partners shall be credited to the respective partners under an account called "Extra Capital Subscription Account and for the period of the utilisation of the whole or part thereof during the course of the year or years, it shall be treated as capital contribution only for the purpose of dividing profit but it shall otherwise in no circumstances be added to the paid-up capital."Cl. 11. "In addition to the share of profits in proportion to the contribution to the extra capital subscription account, the amount so advanced shall carry an interest equal to the highest rate at which the company may have to pay in the event of borrowing the same from Multani money market and shall carry twice the said rate of interest in the year or years of loss."Cl. 34. "The senior partner may at any time during the subsistence of the partnership bring in one or more of his other sons other than partners of the 5th and 6th part herein to the partnership and in the event of their so becoming partners they will be liable for the same duties as the other partners herein and shall be entitled to remuneration and profits in proportion to their capital contribution."Cl. 41(a). "In the event of the dissolution of partnership the capital available for distribution as per the balance sheet, except for debts outstanding for collection and reserve fund, shall be paid off to the outgoing partner in proportion of the capital contribution of the outgoing partner to the total contribution of all the partners, including extra capital subscription paid, if any, under Cl. 9." None of these clauses specify the shares of the partners. Clause 9 has reference to extra contribution made by the partners which was to be treated as capital contribution for the purpose of dividing profits but was not otherwise taken to be paid up capital. Clause 11 provides for interest on the extra capital subscribed. Clause 34 authorises the senior partner during the subsistence of the partnership to bring in one or more of his sons as partners who on being so brought in were entitled to remuneration and profits in proportion to their capital contribution. Clause 41(a) provides that in the event of dissolution of partnership the capital available except for debts etc., was to be paid to the outgoing partners in proportion to the capital contribution of the outgoing partner. But in none of these clauses is it stated what the shares of the partners in the profits and losses of the firm were to be and that in our opinion was requisite for registration of the partnership under S. 26-A of the Act and as that was wanting, registration was rightly refused. Registration under S. 26-A of the Act confers a benefit on the partners which the partners would not be entitled to but for S. 26-A. The right can be claimed only in accordance with the statute which confers it and a person seeking relief under that section must bring himself strictly within the term of that section. The right is strictly regulated by the terms of that statute. R. Subba Rao v. Commr. of Income-tax, Madras, 1956 SCR 577 at p. 588: ( (S) AIR 1956 SC 604 at p. 612). Section 26 A provides:-S. 26-A (1). "Application may be made to the Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners for registration for the purpose of this Act and of any other enactment for the time being in force relating to income-tax or super-tax."For the purpose of this case the relevant words of that section are "constituted under an instrument of partnership specifying the individual shares of the partners." Therefore unless the instrument of partnership specified the individual shares of the partners the instrument of partnership does not conform to the requirements of the section. In R. C. Mitter and Sons v. Commr. of Income-tax, 1959-36 ITR 194 : (AIR 1959 SC 868 ) it was held that the instrument of partnership to be registered should have been in existence in the accounting year in respect of which an assessment in being made. At p. 202 (of ITR): (at p. 874 of AIR) Sinha J. (as he then was) said:-"It is, therefore, essential, in the interest of proper administration and enforcement of the relevant provisions relating to the registration of firms, that the firms should strictly comply with the requirements of the law, and it is incumbent upon the Income-tax authorities to insist upon full compliance with the requirements of the law."In the present case an instrument of partnership was in existence but it did not specify the shares which was one of the requirements for registration and that condition was fulfilled by the deed of rectification dated September 17, 1955. Therefore it cannot be said that there was the requisite instrument of partnership specifying the individual shares of the partners during the year of account. The High Court, in our opinion, was right in answering the question in the negative. | 0[ds]None of these clauses specify the shares of the partners. Clause 9 has reference to extra contribution made by the partners which was to be treated as capital contribution for the purpose of dividing profits but was not otherwise taken to be paid up capital. Clause 11 provides for interest on the extra capital subscribed. Clause 34 authorises the senior partner during the subsistence of the partnership to bring in one or more of his sons as partners who on being so brought in were entitled to remuneration and profits in proportion to their capital contribution. Clause 41(a) provides that in the event of dissolution of partnership the capital available except for debts etc., was to be paid to the outgoing partners in proportion to the capital contribution of the outgoing partner. But in none of these clauses is it stated what the shares of the partners in the profits and losses of the firm were to be and that in our opinion was requisite for registration of the partnership under S. 26-A of the Act and as that was wanting, registration was rightly refused. Registration under S. 26-A of the Act confers a benefit on the partners which the partners would not be entitled to but for S. 26-A. The right can be claimed only in accordance with the statute which confers it and a person seeking relief under that section must bring himself strictly within the term of that section. The right is strictly regulated by the terms of thatthe purpose of this case the relevant words of that section are "constituted under an instrument of partnership specifying the individual shares of the partners." Therefore unless the instrument of partnership specified the individual shares of the partners the instrument of partnership does not conform to the requirements of thethe present case an instrument of partnership was in existence but it did not specify the shares which was one of the requirements for registration and that condition was fulfilled by the deed of rectification dated September 17, 1955. Therefore it cannot be said that there was the requisite instrument of partnership specifying the individual shares of the partners during the year of account. The High Court, in our opinion, was right in answering the question in the negative. | 0 | 1,644 | 406 | ### Instruction:
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referred to the High Court for its opinion:-"Whether the assessee firm is entitled to registration u/s 26-A of the Income-tax Act for the assessment year 1955-56."The High Court held that under S. 26-A of the Act the factual existence in the year of account of an instrument of partnership was necessary, a requisite which, in the present case, was lacking and therefore the provisions of S. 26-A were not satisfied and that the specification of shares only took place on September 17, 1955, when the deed of rectification was executed. The question was therefore answered in the negative. Against this judgment and order the appellate has come in appeal to this court by certificate of the High Court.4. It was contended that Cls. 9, 11, 34 and 41(a) sufficiently specified the shares of the partners and satisfied the requirements of the law. These clauses were as follows:-Cl. 9. "Such extra contribution made by the partners shall be credited to the respective partners under an account called "Extra Capital Subscription Account and for the period of the utilisation of the whole or part thereof during the course of the year or years, it shall be treated as capital contribution only for the purpose of dividing profit but it shall otherwise in no circumstances be added to the paid-up capital."Cl. 11. "In addition to the share of profits in proportion to the contribution to the extra capital subscription account, the amount so advanced shall carry an interest equal to the highest rate at which the company may have to pay in the event of borrowing the same from Multani money market and shall carry twice the said rate of interest in the year or years of loss."Cl. 34. "The senior partner may at any time during the subsistence of the partnership bring in one or more of his other sons other than partners of the 5th and 6th part herein to the partnership and in the event of their so becoming partners they will be liable for the same duties as the other partners herein and shall be entitled to remuneration and profits in proportion to their capital contribution."Cl. 41(a). "In the event of the dissolution of partnership the capital available for distribution as per the balance sheet, except for debts outstanding for collection and reserve fund, shall be paid off to the outgoing partner in proportion of the capital contribution of the outgoing partner to the total contribution of all the partners, including extra capital subscription paid, if any, under Cl. 9." None of these clauses specify the shares of the partners. Clause 9 has reference to extra contribution made by the partners which was to be treated as capital contribution for the purpose of dividing profits but was not otherwise taken to be paid up capital. Clause 11 provides for interest on the extra capital subscribed. Clause 34 authorises the senior partner during the subsistence of the partnership to bring in one or more of his sons as partners who on being so brought in were entitled to remuneration and profits in proportion to their capital contribution. Clause 41(a) provides that in the event of dissolution of partnership the capital available except for debts etc., was to be paid to the outgoing partners in proportion to the capital contribution of the outgoing partner. But in none of these clauses is it stated what the shares of the partners in the profits and losses of the firm were to be and that in our opinion was requisite for registration of the partnership under S. 26-A of the Act and as that was wanting, registration was rightly refused. Registration under S. 26-A of the Act confers a benefit on the partners which the partners would not be entitled to but for S. 26-A. The right can be claimed only in accordance with the statute which confers it and a person seeking relief under that section must bring himself strictly within the term of that section. The right is strictly regulated by the terms of that statute. R. Subba Rao v. Commr. of Income-tax, Madras, 1956 SCR 577 at p. 588: ( (S) AIR 1956 SC 604 at p. 612). Section 26 A provides:-S. 26-A (1). "Application may be made to the Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners for registration for the purpose of this Act and of any other enactment for the time being in force relating to income-tax or super-tax."For the purpose of this case the relevant words of that section are "constituted under an instrument of partnership specifying the individual shares of the partners." Therefore unless the instrument of partnership specified the individual shares of the partners the instrument of partnership does not conform to the requirements of the section. In R. C. Mitter and Sons v. Commr. of Income-tax, 1959-36 ITR 194 : (AIR 1959 SC 868 ) it was held that the instrument of partnership to be registered should have been in existence in the accounting year in respect of which an assessment in being made. At p. 202 (of ITR): (at p. 874 of AIR) Sinha J. (as he then was) said:-"It is, therefore, essential, in the interest of proper administration and enforcement of the relevant provisions relating to the registration of firms, that the firms should strictly comply with the requirements of the law, and it is incumbent upon the Income-tax authorities to insist upon full compliance with the requirements of the law."In the present case an instrument of partnership was in existence but it did not specify the shares which was one of the requirements for registration and that condition was fulfilled by the deed of rectification dated September 17, 1955. Therefore it cannot be said that there was the requisite instrument of partnership specifying the individual shares of the partners during the year of account. The High Court, in our opinion, was right in answering the question in the negative.
### Response:
0
### Explanation:
None of these clauses specify the shares of the partners. Clause 9 has reference to extra contribution made by the partners which was to be treated as capital contribution for the purpose of dividing profits but was not otherwise taken to be paid up capital. Clause 11 provides for interest on the extra capital subscribed. Clause 34 authorises the senior partner during the subsistence of the partnership to bring in one or more of his sons as partners who on being so brought in were entitled to remuneration and profits in proportion to their capital contribution. Clause 41(a) provides that in the event of dissolution of partnership the capital available except for debts etc., was to be paid to the outgoing partners in proportion to the capital contribution of the outgoing partner. But in none of these clauses is it stated what the shares of the partners in the profits and losses of the firm were to be and that in our opinion was requisite for registration of the partnership under S. 26-A of the Act and as that was wanting, registration was rightly refused. Registration under S. 26-A of the Act confers a benefit on the partners which the partners would not be entitled to but for S. 26-A. The right can be claimed only in accordance with the statute which confers it and a person seeking relief under that section must bring himself strictly within the term of that section. The right is strictly regulated by the terms of thatthe purpose of this case the relevant words of that section are "constituted under an instrument of partnership specifying the individual shares of the partners." Therefore unless the instrument of partnership specified the individual shares of the partners the instrument of partnership does not conform to the requirements of thethe present case an instrument of partnership was in existence but it did not specify the shares which was one of the requirements for registration and that condition was fulfilled by the deed of rectification dated September 17, 1955. Therefore it cannot be said that there was the requisite instrument of partnership specifying the individual shares of the partners during the year of account. The High Court, in our opinion, was right in answering the question in the negative.
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The State of Karnataka & Others Vs. Shankar Baburao Kangralkar & Another | be a holder of Bachelor Degree with Hindi as major subject.ANDMust be holder of degree in Education with the concerned subject or subjects as teaching methods”4. Admittedly, Respondent No.1 is a holder of a Bachelor’s Degree with Hindi as a major subject but does not hold a B.Ed Degree with Hindi as a teaching method although he does hold a B.Ed Degree from Karnataka University. Consequently, even though Respondent No.1 had done quite well in the selection process, he was not selected on the ground that he did not possess the requisite qualification for appointment.5. Feeling aggrieved, Respondent No.1 preferred Application No. 931 of 2004 before the Karnataka Administrative Tribunal challenging his non-selection. By its judgment and order dated 4th December, 2009 the Tribunal came to the conclusion that under the Recruitment Rules, namely, The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 there are three sets of qualifications postulated for appointment to the post of Language Assistant. Broadly, a Language Assistant must have a Bachelor’s Degree in Arts with the concerned language as one of the optional subjects and must be the holder of a degree in Education. Secondly, in the case of a Hindi Language Assistant, the candidate must be a holder of a Bachelor’s Degree with Hindi as a major subject and must be the holder of a B.Ed Degree with the concerned subject as teaching methods. Thirdly, a special provision is made for a Language Assistant in Hindi in the case of a certain category of candidates. We are not concerned with the third category.6. The Tribunal took the view that as long as Respondent No.1 holds a Bachelor’s Degree in Arts with Hindi as a major subject and holds a degree in Education from the Karnataka University, he fulfills the eligibility requirement and therefore is entitled to a direction for being considered for selection as per his merit by removing the last selected candidate.7. Feeling aggrieved by the decision of the Tribunal, the appellants preferred a writ petition in the Karnataka High Court and the last selected candidate Prakash Kundalik Patil also preferred a writ petition in the High Court. Both the writ petitions were heard and dismissed by the High Court with the result that Respondent No.1 was required to be considered for the post of Language Assistant.8. The High Court took the view that as long as Respondent No.1 holds a Bachelor’s Degree with Hindi as a major subject and a B.Ed Degree from Karnataka University, he was entitled to be considered for selection to the post of Language Assistant. The High Court held that the primary requirement under the Recruitment Rules was that a candidate for appointment as a Language Assistant must be a holder of a Bachelor’s Degree in Arts with the concerned language as one of the optional subjects and must be the holder of degree in Education. Since Respondent No.1 satisfied both the requirements, he was entitled to be considered for selection.9. Feeling aggrieved, the present appeal has been preferred by the State of Karnataka. Prakash Kundalik Patil has not preferred any appeal in this Court. In our opinion, both the Karnataka Administrative Tribunal as well as the High Court were in error and took a rather narrow and restricted view of the eligibility criteria.10. There is no doubt that under the Recruitment Rules a Bachelor’s Degree in Arts in the concerned language is a pre-requisite as also a B.Ed Degree but as far as a Hindi Language Assistant is concerned, the eligibility criterion for that post has been singled out with other requirements. The Recruitment Rules make a specific category for a Hindi Language Assistant by requiring a candidate to not only hold a Bachelor’s Degree but hold such a degree with Hindi as a major subject and not only as an optional subject. The additional requirement under the Recruitment Rules is that the candidate must hold a degree in Education with the concerned subject (Hindi) as a teaching method. In other words, the requirement for a Hindi Language Assistant is much stricter than it is for any other language such as Kannada, Marathi, Telugu, Tamil etc. Essentially, the Recruitment Rules have carved out a special set of requirements for a Hindi Language Assistant and there is no challenge to such a specific requirement.11. Recently, in Independent Thought v. Union of India (2017) 10 SCC 800 )we have discussed the primacy given to and the application of a special law as against a general law from paragraph 95 onwards of the Report. More recently in Atma Ram Properties Pvt. Ltd. v. The Oriental Insurance Co. Ltd. (2017 SCC OnLine SC 1424)a reference was made to the following passage from St. Stephens College v. University of Delhi (1992) 1 SCC 558 )wherein it was held:“140. … The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated.”12. Clearly therefore, it is well settled that if a special provision is made on a certain matter, that matter is excluded from the general provision. This principle is fully applicable to The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 and the provision relating to the post of a Hindi Language Assistant.13. The undisputed facts are that although Respondent No.1 does have a Bachelor’s Degree with Hindi as a major subject, but he does not have a B.Ed with Hindi as a teaching method. That being so, the appellants were justified in not accepting the candidature of Respondent No.1 and the Karnataka Administrative Tribunal as well as the High Court were in error in granting relief to Respondent No.1. | 1[ds]10. There is no doubt that under the Recruitment Rules aDegree in Arts in the concerned language is aas also a B.Ed Degree but as far as a Hindi Language Assistant is concerned, the eligibility criterion for that post has been singled out with other requirements. The Recruitment Rules make a specific category for a Hindi Language Assistant by requiring a candidate to not only hold aDegree but hold such a degree with Hindi as a major subject and not only as an optional subject. The additional requirement under the Recruitment Rules is that the candidate must hold a degree in Education with the concerned subject (Hindi) as a teaching method. In other words, the requirement for a Hindi Language Assistant is much stricter than it is for any other language such as Kannada, Marathi, Telugu, Tamil etc. Essentially, the Recruitment Rules have carved out a special set of requirements for a Hindi Language Assistant and there is no challenge to such a specific requirement.Clearly therefore, it is well settled that if a special provision is made on a certain matter, that matter is excluded from the general provision. This principle is fully applicable to The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 and the provision relating to the post of a Hindi Language Assistant.13. The undisputed facts are that although Respondent No.1 does have aDegree with Hindi as a major subject, but he does not have a B.Ed with Hindi as a teaching method. That being so, the appellants were justified in not accepting the candidature of Respondent No.1 and the Karnataka Administrative Tribunal as well as the High Court were in error in granting relief to Respondent No.1. | 1 | 1,245 | 317 | ### 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:
be a holder of Bachelor Degree with Hindi as major subject.ANDMust be holder of degree in Education with the concerned subject or subjects as teaching methods”4. Admittedly, Respondent No.1 is a holder of a Bachelor’s Degree with Hindi as a major subject but does not hold a B.Ed Degree with Hindi as a teaching method although he does hold a B.Ed Degree from Karnataka University. Consequently, even though Respondent No.1 had done quite well in the selection process, he was not selected on the ground that he did not possess the requisite qualification for appointment.5. Feeling aggrieved, Respondent No.1 preferred Application No. 931 of 2004 before the Karnataka Administrative Tribunal challenging his non-selection. By its judgment and order dated 4th December, 2009 the Tribunal came to the conclusion that under the Recruitment Rules, namely, The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 there are three sets of qualifications postulated for appointment to the post of Language Assistant. Broadly, a Language Assistant must have a Bachelor’s Degree in Arts with the concerned language as one of the optional subjects and must be the holder of a degree in Education. Secondly, in the case of a Hindi Language Assistant, the candidate must be a holder of a Bachelor’s Degree with Hindi as a major subject and must be the holder of a B.Ed Degree with the concerned subject as teaching methods. Thirdly, a special provision is made for a Language Assistant in Hindi in the case of a certain category of candidates. We are not concerned with the third category.6. The Tribunal took the view that as long as Respondent No.1 holds a Bachelor’s Degree in Arts with Hindi as a major subject and holds a degree in Education from the Karnataka University, he fulfills the eligibility requirement and therefore is entitled to a direction for being considered for selection as per his merit by removing the last selected candidate.7. Feeling aggrieved by the decision of the Tribunal, the appellants preferred a writ petition in the Karnataka High Court and the last selected candidate Prakash Kundalik Patil also preferred a writ petition in the High Court. Both the writ petitions were heard and dismissed by the High Court with the result that Respondent No.1 was required to be considered for the post of Language Assistant.8. The High Court took the view that as long as Respondent No.1 holds a Bachelor’s Degree with Hindi as a major subject and a B.Ed Degree from Karnataka University, he was entitled to be considered for selection to the post of Language Assistant. The High Court held that the primary requirement under the Recruitment Rules was that a candidate for appointment as a Language Assistant must be a holder of a Bachelor’s Degree in Arts with the concerned language as one of the optional subjects and must be the holder of degree in Education. Since Respondent No.1 satisfied both the requirements, he was entitled to be considered for selection.9. Feeling aggrieved, the present appeal has been preferred by the State of Karnataka. Prakash Kundalik Patil has not preferred any appeal in this Court. In our opinion, both the Karnataka Administrative Tribunal as well as the High Court were in error and took a rather narrow and restricted view of the eligibility criteria.10. There is no doubt that under the Recruitment Rules a Bachelor’s Degree in Arts in the concerned language is a pre-requisite as also a B.Ed Degree but as far as a Hindi Language Assistant is concerned, the eligibility criterion for that post has been singled out with other requirements. The Recruitment Rules make a specific category for a Hindi Language Assistant by requiring a candidate to not only hold a Bachelor’s Degree but hold such a degree with Hindi as a major subject and not only as an optional subject. The additional requirement under the Recruitment Rules is that the candidate must hold a degree in Education with the concerned subject (Hindi) as a teaching method. In other words, the requirement for a Hindi Language Assistant is much stricter than it is for any other language such as Kannada, Marathi, Telugu, Tamil etc. Essentially, the Recruitment Rules have carved out a special set of requirements for a Hindi Language Assistant and there is no challenge to such a specific requirement.11. Recently, in Independent Thought v. Union of India (2017) 10 SCC 800 )we have discussed the primacy given to and the application of a special law as against a general law from paragraph 95 onwards of the Report. More recently in Atma Ram Properties Pvt. Ltd. v. The Oriental Insurance Co. Ltd. (2017 SCC OnLine SC 1424)a reference was made to the following passage from St. Stephens College v. University of Delhi (1992) 1 SCC 558 )wherein it was held:“140. … The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated.”12. Clearly therefore, it is well settled that if a special provision is made on a certain matter, that matter is excluded from the general provision. This principle is fully applicable to The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 and the provision relating to the post of a Hindi Language Assistant.13. The undisputed facts are that although Respondent No.1 does have a Bachelor’s Degree with Hindi as a major subject, but he does not have a B.Ed with Hindi as a teaching method. That being so, the appellants were justified in not accepting the candidature of Respondent No.1 and the Karnataka Administrative Tribunal as well as the High Court were in error in granting relief to Respondent No.1.
### Response:
1
### Explanation:
10. There is no doubt that under the Recruitment Rules aDegree in Arts in the concerned language is aas also a B.Ed Degree but as far as a Hindi Language Assistant is concerned, the eligibility criterion for that post has been singled out with other requirements. The Recruitment Rules make a specific category for a Hindi Language Assistant by requiring a candidate to not only hold aDegree but hold such a degree with Hindi as a major subject and not only as an optional subject. The additional requirement under the Recruitment Rules is that the candidate must hold a degree in Education with the concerned subject (Hindi) as a teaching method. In other words, the requirement for a Hindi Language Assistant is much stricter than it is for any other language such as Kannada, Marathi, Telugu, Tamil etc. Essentially, the Recruitment Rules have carved out a special set of requirements for a Hindi Language Assistant and there is no challenge to such a specific requirement.Clearly therefore, it is well settled that if a special provision is made on a certain matter, that matter is excluded from the general provision. This principle is fully applicable to The Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 and the provision relating to the post of a Hindi Language Assistant.13. The undisputed facts are that although Respondent No.1 does have aDegree with Hindi as a major subject, but he does not have a B.Ed with Hindi as a teaching method. That being so, the appellants were justified in not accepting the candidature of Respondent No.1 and the Karnataka Administrative Tribunal as well as the High Court were in error in granting relief to Respondent No.1.
|
The State Of Madhya Pradesh Vs. G. C. Mandawar | different slabs of pay is obnoxious to Article 24. Secondly, within any gives slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for resident in the cities of Nagpur and Jabulpore, which again has not been attacked as discriminatory. These being the features of the scheme, there can be no room for the contention that it has made any discrimination.9. Mr. Nambiar does not contend that there is anything in the scheme or in the Resolution adopting it, which brings it within the prohibition enacted in Article14. His contention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates by the Commission, and instead, adopted different and lower rates and that this was discrimination hit by Article14. In other words, the impugned Resolution, though valid in itself as not infringing Article 14 becomes void under that provision, when it is taken in conjunction with the report of the Commission. We do not find anything in Article 14 which supports this somewhat startling contention. Under the Constitution, the Union and the State are distinct entitles each having its own executive and legislature, with their powers well-defined. Article 12 defines "the State" as including the Government and the legislature of each of the State. Article 13(2) enacts that the State shall not make any laws taking away or abridging the rights conferred by Part III; and Article 14 enacts that,"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."On these provisions, the position is that when a law is impugned under Article13, what the Court has to decide is whether that law contravenes any of the provisions of Part III. If it decides that it does, it has to declare that it void; if it decides that it does not, it has to uphold it. The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they for one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Government and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does not it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to Article14. It may no doubt sound hard that Government servants doing work of a similar kind and working it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under Article 14.10. It was argues on behalf of the appellant that the assumption underlying the argument of the respondent with reference to Article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of Article 14, this question has no practical importance; but as all the materials have been placed before us, we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance.In paragraph 31, they observed that unlike the Commission they were taking into consideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance; and if the two schemes produced the same results at some stages, that was due to coincidence and not to adoption of the report of the Commission by the Committee.Mr. Nambiar also referred us to two Resolution of the appellant dated 4-1-1951 and 6-10-1951 adopting the scale fixed by the Commission in respect of certain other categories. That has no bearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint; and in formulating the scheme which they did, they did not adopt the Report of the Commission, though they derived considerable assistance from it. | 1[ds]Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for mandamus is clearly misconceived, as that could be granted only when there is the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servant to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion, and no mandamus can issue to compel the exercise of such a power. Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant which is capable of being protected orwe are not concerned in the present proceedings with any debt payable by the Government. The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim now put forward is to compel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and not a matter of right.Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance is to be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction of the rate from the lowest to the highest category. No contention allowance for different rates of dearness allowance for different slabs of pay is obnoxious to Article 24. Secondly, within any gives slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for resident in the cities of Nagpur and Jabulpore, which again has not been attacked as discriminatory. These being the features of the scheme, there can be no room for the contention that it has made anydo not find anything in Article 14 which supports this somewhat startling contention. Under the Constitution, the Union and the State are distinct entitles each having its own executive and legislature, with their powers well-defined. Article 12 defines "the State" as including the Government and the legislature of each of the State. Article 13(2) enacts that the State shall not make any laws taking away or abridging the rights conferred by Partthese provisions, the position is that when a law is impugned under Article13, what the Court has to decide is whether that law contravenes any of the provisions of Part III. If it decides that it does, it has to declare that it void; if it decides that it does not, it has to uphold it. The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they for one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Government and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does not it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to Article14. It may no doubt sound hard that Government servants doing work of a similar kind and working it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under Articleparagraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance. | 1 | 2,897 | 926 | ### 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:
different slabs of pay is obnoxious to Article 24. Secondly, within any gives slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for resident in the cities of Nagpur and Jabulpore, which again has not been attacked as discriminatory. These being the features of the scheme, there can be no room for the contention that it has made any discrimination.9. Mr. Nambiar does not contend that there is anything in the scheme or in the Resolution adopting it, which brings it within the prohibition enacted in Article14. His contention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates by the Commission, and instead, adopted different and lower rates and that this was discrimination hit by Article14. In other words, the impugned Resolution, though valid in itself as not infringing Article 14 becomes void under that provision, when it is taken in conjunction with the report of the Commission. We do not find anything in Article 14 which supports this somewhat startling contention. Under the Constitution, the Union and the State are distinct entitles each having its own executive and legislature, with their powers well-defined. Article 12 defines "the State" as including the Government and the legislature of each of the State. Article 13(2) enacts that the State shall not make any laws taking away or abridging the rights conferred by Part III; and Article 14 enacts that,"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."On these provisions, the position is that when a law is impugned under Article13, what the Court has to decide is whether that law contravenes any of the provisions of Part III. If it decides that it does, it has to declare that it void; if it decides that it does not, it has to uphold it. The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they for one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Government and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does not it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to Article14. It may no doubt sound hard that Government servants doing work of a similar kind and working it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under Article 14.10. It was argues on behalf of the appellant that the assumption underlying the argument of the respondent with reference to Article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of Article 14, this question has no practical importance; but as all the materials have been placed before us, we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance.In paragraph 31, they observed that unlike the Commission they were taking into consideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance; and if the two schemes produced the same results at some stages, that was due to coincidence and not to adoption of the report of the Commission by the Committee.Mr. Nambiar also referred us to two Resolution of the appellant dated 4-1-1951 and 6-10-1951 adopting the scale fixed by the Commission in respect of certain other categories. That has no bearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint; and in formulating the scheme which they did, they did not adopt the Report of the Commission, though they derived considerable assistance from it.
### Response:
1
### Explanation:
Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for mandamus is clearly misconceived, as that could be granted only when there is the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servant to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion, and no mandamus can issue to compel the exercise of such a power. Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant which is capable of being protected orwe are not concerned in the present proceedings with any debt payable by the Government. The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim now put forward is to compel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and not a matter of right.Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance is to be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction of the rate from the lowest to the highest category. No contention allowance for different rates of dearness allowance for different slabs of pay is obnoxious to Article 24. Secondly, within any gives slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for resident in the cities of Nagpur and Jabulpore, which again has not been attacked as discriminatory. These being the features of the scheme, there can be no room for the contention that it has made anydo not find anything in Article 14 which supports this somewhat startling contention. Under the Constitution, the Union and the State are distinct entitles each having its own executive and legislature, with their powers well-defined. Article 12 defines "the State" as including the Government and the legislature of each of the State. Article 13(2) enacts that the State shall not make any laws taking away or abridging the rights conferred by Partthese provisions, the position is that when a law is impugned under Article13, what the Court has to decide is whether that law contravenes any of the provisions of Part III. If it decides that it does, it has to declare that it void; if it decides that it does not, it has to uphold it. The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they for one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Government and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does not it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to Article14. It may no doubt sound hard that Government servants doing work of a similar kind and working it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under Articleparagraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance.
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The Oriental Insurance Co. Ltd. & Another Vs. Gokulprasad Maniklal Agarwal & Another | G.T. Nanavati, J. Delay condoned. 1. Leave granted. 2. The respondent-Gokulprasad Maniklal Agarwal was working as an Assistant Administrative Officer with the Appellant insurance company. He challenged initiation of disciplinary proceedings against him by the appellant by filing Writ Petition No. 2128/84 in the High Court of Bombay. While the departmental proceedings were pending a promotion list for the Western Zone for promotion to the post of Administrative Officer was published by the appellant on 8.2.1988. The respondents name appeared at serial No. 1. Instead of promoting him, by letter dated 22.2.1988, the respondent was informed by the appellant that as the disciplinary proceedings were pending against him his promotion to the rank of Administrative Officer has been kept in abeyance till the result of the enquiry.3. The disciplinary proceedings ended with an order dated 19.11.1993 whereby the respondent was awarded penalty of reduction in basic pay by one stage in the time scale of pay on permanent basis. The respondent feeling aggrieved by the letter dated 22.2.1988 and the order of punishment dated 19.11.1993, amended the Writ Petition and challenged the said letter and order also. The High Court considered the punishment imposed upon the respondent as a minor penalty and held that imposition of such a minor penalty could not come in the way of promotion. Taking this view the High Court allowed the Writ petition and quashed the letter/decision dated 22.2.1988.4. The appellant then filed Special Leave Petition (Civil) No. 3413 of 1998, in this Court. It was withdrawn as the appellant wanted to file a Review Petition before the High Court. The appellant, thereafter, did approach the High Court by way of a Review Petition but the same was dismissed on the ground that there was no error apparent on the face of the record. Aggrieved by both the orders of the High Court, the appellant has filed these appeals. The respondent though served has not thought it fit to appear.5. What is contended by the learned counsel for the appellant is that the punishment imposed upon the respondent was a major penalty and not a minor penalty. He submitted that it was a mistake on the part of the learned counsel appearing for the Insurance Company to have conceded before the High Court that it was a minor penalty. He further submitted that this error has vitiated the order passed by the High Court.6. Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of the said Rules clearly describes reduction to a lower time scale or to a lower stage in a time as a major penalty. Obviously, the learned counsel who appeared for the Insurance Company had committed a mistake while describing it as a minor penalty. When this mistake was pointed out to the High Court it should have really reviewed its earlier order. 7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the year 1999-2000 having found him fit he has now been promoted to the higher post.8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent. | 1[ds]7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the yearhaving found him fit he has now been promoted to the higher post.8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent. | 1 | 660 | 135 | ### 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:
G.T. Nanavati, J. Delay condoned. 1. Leave granted. 2. The respondent-Gokulprasad Maniklal Agarwal was working as an Assistant Administrative Officer with the Appellant insurance company. He challenged initiation of disciplinary proceedings against him by the appellant by filing Writ Petition No. 2128/84 in the High Court of Bombay. While the departmental proceedings were pending a promotion list for the Western Zone for promotion to the post of Administrative Officer was published by the appellant on 8.2.1988. The respondents name appeared at serial No. 1. Instead of promoting him, by letter dated 22.2.1988, the respondent was informed by the appellant that as the disciplinary proceedings were pending against him his promotion to the rank of Administrative Officer has been kept in abeyance till the result of the enquiry.3. The disciplinary proceedings ended with an order dated 19.11.1993 whereby the respondent was awarded penalty of reduction in basic pay by one stage in the time scale of pay on permanent basis. The respondent feeling aggrieved by the letter dated 22.2.1988 and the order of punishment dated 19.11.1993, amended the Writ Petition and challenged the said letter and order also. The High Court considered the punishment imposed upon the respondent as a minor penalty and held that imposition of such a minor penalty could not come in the way of promotion. Taking this view the High Court allowed the Writ petition and quashed the letter/decision dated 22.2.1988.4. The appellant then filed Special Leave Petition (Civil) No. 3413 of 1998, in this Court. It was withdrawn as the appellant wanted to file a Review Petition before the High Court. The appellant, thereafter, did approach the High Court by way of a Review Petition but the same was dismissed on the ground that there was no error apparent on the face of the record. Aggrieved by both the orders of the High Court, the appellant has filed these appeals. The respondent though served has not thought it fit to appear.5. What is contended by the learned counsel for the appellant is that the punishment imposed upon the respondent was a major penalty and not a minor penalty. He submitted that it was a mistake on the part of the learned counsel appearing for the Insurance Company to have conceded before the High Court that it was a minor penalty. He further submitted that this error has vitiated the order passed by the High Court.6. Learned counsel drew our attention to the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and we find that Rule 23 of the said Rules clearly describes reduction to a lower time scale or to a lower stage in a time as a major penalty. Obviously, the learned counsel who appeared for the Insurance Company had committed a mistake while describing it as a minor penalty. When this mistake was pointed out to the High Court it should have really reviewed its earlier order. 7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the year 1999-2000 having found him fit he has now been promoted to the higher post.8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent.
### Response:
1
### Explanation:
7. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of the respondent was again considered by the Promotion Committee. He was considered for succeeding years also but was not found fit for promotion on merits. The Promotion Committee for the yearhaving found him fit he has now been promoted to the higher post.8. In our opinion the High Court was not right in setting aside the decision of the appellant as contained in the letter dated 22.2.1988 and allowing the petition filed by the respondent.
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Hdfc Bank Limited Vs. Vasudeo Shripad Belvalkar (Deceased), Through His Legal Heir Vidyanand Vasudeo Belvalkar | speedier mechanism for the recovery.32. Learned Senior Counsel Mr. Tulzapurkar, has relied on the judgment of the Supreme Court in the case of ICICI Bank Limited Versus. Official Liquidator of APS Star Industries Limited and Others, reported in (2010) 10 Supreme Court Cases page 1.33. Mr. Tulzapurkar, Learned Senior Counsel has cited this judgment in support of the argument that acquiring/taking premises on leave and license basis is one of the forms of business contemplated under Section 6 of the Banking Regulation Act. Senior Counsel Mr. Tulzapurkar, has relied on Section 6(1)(n) of the Banking Regulation Act and submitted that taking licensed premises for starting the branch is an activity incidental or conducive to promotion or advancement of the business of the Bank. He submitted that, Section 6(1) enables Banking Companies to carry on different forms of businesses. Reliance is placed on para-37 of the said judgment which reads as under :37. 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"..It is therefore submitted by Mr. Tulzapurkar, Learned Senior Counsel, that the security deposit was given to the respondent for obtaining the premises on leave and license basis and therefore it is one of the forms of business in terms of Section 6 of the Banking Regulation Act. He would therefore contend that, since the respondent declined to refund the security amount, which was given to him in the course of the Banking business, it is a debt within the meaning of Section 2(g) of the Act and therefore the proceedings filed under Section 17 of the said Act were maintainable.34. In the case of ICICI Bank (supra), the Apex Court was dealing with the issue as to whether, inter-se transfer of Non-Performing Assets by a Bank is legal under the Banking Regulation Act. Thus, has examined the provisions of the Banking Regulation Act and scope of Sections 5(1)(a) and Section 6 of the Banking Regulation Act. Issue therein was, whether assignment of Debt is Banking activity within the meaning of Banking Regulation Act. In the case in hand, the issue is altogether different which we have dealt with in the foregoing paras. Mr. Tulzapurkar, Senior Counsel may be right in saying that, acquiring the premises on leave and license basis for the temporary period is one of the forms of businesses contemplated under Section 6 of the Banking Regulation Act but unpaid security amount for acquiring Licensed premises is certainly not a debt within the meaning of Section 2(g) of the said Act for the reasons stated hereinabove.35. Learned Senior Counsel Mr. Tulzapuarkar, has also relied on a judgment in the case of Vijaya Bank V/s. A.N. Tewari reported in (1995) 60 DLT 454. In this case, the Bank was a tenant and in the dispute was pending in the Court. The Bank had engaged the services of the Lawyer. The grievance of the Bank was that, the cheque in the sum of Rs.4,13,483/- was issued in the name of Lawyer for depositing the said amount in the Court as arrears of rent. However, it appears the Lawyer did not deposit the entire amount in the Court. It is in these facts of the case, the Bank had filed a suit before the Debt Recovery Tribunal for recovery of the balance amount due from the lawyer. The lawyer was a defendant in the said suit, wherein an application was moved by the defendant-lawyer contending that the amount claimed was not on account of or as a result of any business activity undertaken by Bank as stipulated under Section 2(g) of the said Act and therefore the Tribunal constituted under the Act would have no jurisdiction to try the suit.36. In the said proceedings, the application was rejected by the Tribunal and held that the subject amount constitutes a debt within the meaning of Section 2(g) of the said Act. We respectfully do not agree with the findings recorded by the Learned Judge of the Tribunal. We have recorded the reasons as to why it would not be a debt.37. That for the reasons aforesaid, we hold and conclude that the unpaid security deposit is not a debt within the meaning of Section 2(g) of the said Act and therefore the proceedings instituted under Section 17 of the said Act by the Bank for recovery of the said amount were not maintainable. | 0[ds]25. Therefore, the expression debt is to be assigned meaning and understood in reference to the object and subject matter of scheme of the Act and further it is to be interpreted consistently with the objects and other provisions of the Act. Undisputedly, the Recovery Act was enacted primarily for the reasons that, the Banks and financial institutions should be able to recover their dues without unnecessary delay, so as to avoid any adverse consequences in relation to the public funds. The Statement of Objects and Reasons of this Act clearly state that Banks and financial institutions were experiencing considerable difficulties in recovering loans and enforcements of securities charged with them. The then existing procedure for recovery of dues of the Bank and the financial institutions blocked significant portion of their funds in un-productive assets, the value of which deteriorated with the passage of time. The Act provided for the establishment of Tribunals and Appellate Tribunals and modes for expeditious recovery of dues to the Banks and financial institutions.Thus, in the case of Eureka Forbes (supra), as well as, in United Bank of India (supra), liability as due arose in course of core banking business. It is in this context of the facts in the given cases, expression Debt has been interpreted which is in tune with object and scheme of the Act. In the case in hand, if petitioners contention is accepted, then, every liability claimed as due in the course of business activity in the terms of Section 6(1) of the Banking Regulation Act has to be adjudged in the proceedings under Section 17 of the said Act. To test the arguments of the petitioners, let us take a hypothetical case, where a Bank in the course of its business activity acquires right or agrees to acquires rights in immovable property. May the right be proprietary in nature or otherwise for consideration and Bank has paid substantial amount to the owner in terms of the Agreement. Say, if the dispute arises and if the Bank seeks to recover the amount, question would arise, where proceedings would lie If we uphold the contention of Learned Senior Counsel, Mr. Tulzapurkar then the consideration or part consideration, paid to the owner would constitute a debt and for its refund, claim has to be filed under Section 17 of the said Act before the DRT. In our view, this would run counter to the object and scheme of the said Act. The object and scheme of the said Act, is to ensure attainment of legislative object i.e. expeditious recovery and provisions of taking such measures, which would prevent wastage of securities available with Banks and Financial Institutions (emphasis supplied). This proposition, if accepted, would invest the Tribunal with all powers of Civil Court, which is not intended by the Legislature.29. The expeditious recovery; Providing provisions for taking such measures which would prevent wastage of securities available with the Bank and enforcement of such securities is the object of the Act. Thus, whole object of the said Act is to recover debts by enforcing available security by a mechanism provided under the Act.30. In our view, if we uphold petitioners contention, it may not attain the object of the said act. This, may also, enlarge the jurisdiction of thethe case in hand, the issue is altogether different which we have dealt with in the foregoing paras. Mr. Tulzapurkar, Senior Counsel may be right in saying that, acquiring the premises on leave and license basis for the temporary period is one of the forms of businesses contemplated under Section 6 of the Banking Regulation Act but unpaid security amount for acquiring Licensed premises is certainly not a debt within the meaning of Section 2(g) of the said Act for the reasons stated hereinabove.In the said proceedings, the application was rejected by the Tribunal and held that the subject amount constitutes a debt within the meaning of Section 2(g) of the said Act. We respectfully do not agree with the findings recorded by the Learned Judge of the Tribunal. We have recorded the reasons as to why it would not be a debt.37. That for the reasons aforesaid, we hold and conclude that the unpaid security deposit is not a debt within the meaning of Section 2(g) of the said Act and therefore the proceedings instituted under Section 17 of the said Act by the Bank for recovery of the said amount were not maintainable. | 0 | 5,466 | 823 | ### 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:
speedier mechanism for the recovery.32. Learned Senior Counsel Mr. Tulzapurkar, has relied on the judgment of the Supreme Court in the case of ICICI Bank Limited Versus. Official Liquidator of APS Star Industries Limited and Others, reported in (2010) 10 Supreme Court Cases page 1.33. Mr. Tulzapurkar, Learned Senior Counsel has cited this judgment in support of the argument that acquiring/taking premises on leave and license basis is one of the forms of business contemplated under Section 6 of the Banking Regulation Act. Senior Counsel Mr. Tulzapurkar, has relied on Section 6(1)(n) of the Banking Regulation Act and submitted that taking licensed premises for starting the branch is an activity incidental or conducive to promotion or advancement of the business of the Bank. He submitted that, Section 6(1) enables Banking Companies to carry on different forms of businesses. Reliance is placed on para-37 of the said judgment which reads as under :37. 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"..It is therefore submitted by Mr. Tulzapurkar, Learned Senior Counsel, that the security deposit was given to the respondent for obtaining the premises on leave and license basis and therefore it is one of the forms of business in terms of Section 6 of the Banking Regulation Act. He would therefore contend that, since the respondent declined to refund the security amount, which was given to him in the course of the Banking business, it is a debt within the meaning of Section 2(g) of the Act and therefore the proceedings filed under Section 17 of the said Act were maintainable.34. In the case of ICICI Bank (supra), the Apex Court was dealing with the issue as to whether, inter-se transfer of Non-Performing Assets by a Bank is legal under the Banking Regulation Act. Thus, has examined the provisions of the Banking Regulation Act and scope of Sections 5(1)(a) and Section 6 of the Banking Regulation Act. Issue therein was, whether assignment of Debt is Banking activity within the meaning of Banking Regulation Act. In the case in hand, the issue is altogether different which we have dealt with in the foregoing paras. Mr. Tulzapurkar, Senior Counsel may be right in saying that, acquiring the premises on leave and license basis for the temporary period is one of the forms of businesses contemplated under Section 6 of the Banking Regulation Act but unpaid security amount for acquiring Licensed premises is certainly not a debt within the meaning of Section 2(g) of the said Act for the reasons stated hereinabove.35. Learned Senior Counsel Mr. Tulzapuarkar, has also relied on a judgment in the case of Vijaya Bank V/s. A.N. Tewari reported in (1995) 60 DLT 454. In this case, the Bank was a tenant and in the dispute was pending in the Court. The Bank had engaged the services of the Lawyer. The grievance of the Bank was that, the cheque in the sum of Rs.4,13,483/- was issued in the name of Lawyer for depositing the said amount in the Court as arrears of rent. However, it appears the Lawyer did not deposit the entire amount in the Court. It is in these facts of the case, the Bank had filed a suit before the Debt Recovery Tribunal for recovery of the balance amount due from the lawyer. The lawyer was a defendant in the said suit, wherein an application was moved by the defendant-lawyer contending that the amount claimed was not on account of or as a result of any business activity undertaken by Bank as stipulated under Section 2(g) of the said Act and therefore the Tribunal constituted under the Act would have no jurisdiction to try the suit.36. In the said proceedings, the application was rejected by the Tribunal and held that the subject amount constitutes a debt within the meaning of Section 2(g) of the said Act. We respectfully do not agree with the findings recorded by the Learned Judge of the Tribunal. We have recorded the reasons as to why it would not be a debt.37. That for the reasons aforesaid, we hold and conclude that the unpaid security deposit is not a debt within the meaning of Section 2(g) of the said Act and therefore the proceedings instituted under Section 17 of the said Act by the Bank for recovery of the said amount were not maintainable.
### Response:
0
### Explanation:
25. Therefore, the expression debt is to be assigned meaning and understood in reference to the object and subject matter of scheme of the Act and further it is to be interpreted consistently with the objects and other provisions of the Act. Undisputedly, the Recovery Act was enacted primarily for the reasons that, the Banks and financial institutions should be able to recover their dues without unnecessary delay, so as to avoid any adverse consequences in relation to the public funds. The Statement of Objects and Reasons of this Act clearly state that Banks and financial institutions were experiencing considerable difficulties in recovering loans and enforcements of securities charged with them. The then existing procedure for recovery of dues of the Bank and the financial institutions blocked significant portion of their funds in un-productive assets, the value of which deteriorated with the passage of time. The Act provided for the establishment of Tribunals and Appellate Tribunals and modes for expeditious recovery of dues to the Banks and financial institutions.Thus, in the case of Eureka Forbes (supra), as well as, in United Bank of India (supra), liability as due arose in course of core banking business. It is in this context of the facts in the given cases, expression Debt has been interpreted which is in tune with object and scheme of the Act. In the case in hand, if petitioners contention is accepted, then, every liability claimed as due in the course of business activity in the terms of Section 6(1) of the Banking Regulation Act has to be adjudged in the proceedings under Section 17 of the said Act. To test the arguments of the petitioners, let us take a hypothetical case, where a Bank in the course of its business activity acquires right or agrees to acquires rights in immovable property. May the right be proprietary in nature or otherwise for consideration and Bank has paid substantial amount to the owner in terms of the Agreement. Say, if the dispute arises and if the Bank seeks to recover the amount, question would arise, where proceedings would lie If we uphold the contention of Learned Senior Counsel, Mr. Tulzapurkar then the consideration or part consideration, paid to the owner would constitute a debt and for its refund, claim has to be filed under Section 17 of the said Act before the DRT. In our view, this would run counter to the object and scheme of the said Act. The object and scheme of the said Act, is to ensure attainment of legislative object i.e. expeditious recovery and provisions of taking such measures, which would prevent wastage of securities available with Banks and Financial Institutions (emphasis supplied). This proposition, if accepted, would invest the Tribunal with all powers of Civil Court, which is not intended by the Legislature.29. The expeditious recovery; Providing provisions for taking such measures which would prevent wastage of securities available with the Bank and enforcement of such securities is the object of the Act. Thus, whole object of the said Act is to recover debts by enforcing available security by a mechanism provided under the Act.30. In our view, if we uphold petitioners contention, it may not attain the object of the said act. This, may also, enlarge the jurisdiction of thethe case in hand, the issue is altogether different which we have dealt with in the foregoing paras. Mr. Tulzapurkar, Senior Counsel may be right in saying that, acquiring the premises on leave and license basis for the temporary period is one of the forms of businesses contemplated under Section 6 of the Banking Regulation Act but unpaid security amount for acquiring Licensed premises is certainly not a debt within the meaning of Section 2(g) of the said Act for the reasons stated hereinabove.In the said proceedings, the application was rejected by the Tribunal and held that the subject amount constitutes a debt within the meaning of Section 2(g) of the said Act. We respectfully do not agree with the findings recorded by the Learned Judge of the Tribunal. We have recorded the reasons as to why it would not be a debt.37. That for the reasons aforesaid, we hold and conclude that the unpaid security deposit is not a debt within the meaning of Section 2(g) of the said Act and therefore the proceedings instituted under Section 17 of the said Act by the Bank for recovery of the said amount were not maintainable.
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MEENA SHARMA Vs. THE STATE OF JAMMU AND KASHMIR | first Writ Petition was filed in 2009, the appellant was not impleaded in spite of the fact that Annexure A4 to the Writ Petition indicated the position of the appellant in the Select List. It was only in 2011, nearly four years after the initial appointment of the appellant, that a second Writ Petition was filed in order to challenge the appointment. Thus, on merits, it was urged that there was no breach of the RET Scheme in considering persons belonging to village Chak Koura. Moreover, it was submitted that there was an unexplained delay on the part of the fifth respondent in challenging the appointment of the appellant. The appellant was regularized in 2013. She is stated to be 56 years of age with about four years left to attain the age of superannuation. Moreover, it was urged that, at this stage, quashing the appointment of the appellant would be of no benefit to the fifth respondent. The fifth respondent cannot seek appointment on the basis of a Select List which was drawn up in 2003, nearly sixteen years having elapsed in the meantime. 15. On the other hand, Mr Navyug Sethi, learned counsel appearing on behalf of the fifth respondent, supported the judgment of the High Court, contending that the condition of eligibility in the RET Scheme was that the candidate must belong to the village where the school is situated. This was clarified in a Government Order dated 24 August 2005. The learned counsel submitted that though the appellant did not belong to the revenue village where the school was situated, she was appointed following the first order of the High Court in her Writ Petition only against the threat of coercive action in a Contempt Petition. Learned counsel submitted that the order passed by the High Court envisaged a verification of the place of habitation and if such a verification had been done, it would have revealed that the appellant was not a resident of the revenue village concerned. Hence, placing reliance on the principles which have been enunciated by the High Court, it was urged that it was the fifth respondent, who belonged to the village Bakore, and not the appellant, who was entitled to the post. On the aspect of delay, learned counsel submitted that when the fifth respondent instituted the first Writ Petition in 2009, it was unknown to her that the appellant had been appointed. Consequently, it was only in 2011, after a counter affidavit was filed by the State in the earlier Writ Petition clarifying that the appellant had been appointed in the meantime, that the second Writ Petition was instituted by the fifth respondent before the High Court. Hence, it was urged that there was no delay on the part of the fifth respondent. Learned counsel submitted that upon the invalidation of the appointment of the appellant, the fifth respondent is entitled to the post and a direction should accordingly be issued to that effect. 16. We have also heard Mr G M Kawoosa, learned counsel appearing on behalf of the State. 17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief. 18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura. 19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003. | 1[ds]17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak | 1 | 2,804 | 547 | ### Instruction:
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first Writ Petition was filed in 2009, the appellant was not impleaded in spite of the fact that Annexure A4 to the Writ Petition indicated the position of the appellant in the Select List. It was only in 2011, nearly four years after the initial appointment of the appellant, that a second Writ Petition was filed in order to challenge the appointment. Thus, on merits, it was urged that there was no breach of the RET Scheme in considering persons belonging to village Chak Koura. Moreover, it was submitted that there was an unexplained delay on the part of the fifth respondent in challenging the appointment of the appellant. The appellant was regularized in 2013. She is stated to be 56 years of age with about four years left to attain the age of superannuation. Moreover, it was urged that, at this stage, quashing the appointment of the appellant would be of no benefit to the fifth respondent. The fifth respondent cannot seek appointment on the basis of a Select List which was drawn up in 2003, nearly sixteen years having elapsed in the meantime. 15. On the other hand, Mr Navyug Sethi, learned counsel appearing on behalf of the fifth respondent, supported the judgment of the High Court, contending that the condition of eligibility in the RET Scheme was that the candidate must belong to the village where the school is situated. This was clarified in a Government Order dated 24 August 2005. The learned counsel submitted that though the appellant did not belong to the revenue village where the school was situated, she was appointed following the first order of the High Court in her Writ Petition only against the threat of coercive action in a Contempt Petition. Learned counsel submitted that the order passed by the High Court envisaged a verification of the place of habitation and if such a verification had been done, it would have revealed that the appellant was not a resident of the revenue village concerned. Hence, placing reliance on the principles which have been enunciated by the High Court, it was urged that it was the fifth respondent, who belonged to the village Bakore, and not the appellant, who was entitled to the post. On the aspect of delay, learned counsel submitted that when the fifth respondent instituted the first Writ Petition in 2009, it was unknown to her that the appellant had been appointed. Consequently, it was only in 2011, after a counter affidavit was filed by the State in the earlier Writ Petition clarifying that the appellant had been appointed in the meantime, that the second Writ Petition was instituted by the fifth respondent before the High Court. Hence, it was urged that there was no delay on the part of the fifth respondent. Learned counsel submitted that upon the invalidation of the appointment of the appellant, the fifth respondent is entitled to the post and a direction should accordingly be issued to that effect. 16. We have also heard Mr G M Kawoosa, learned counsel appearing on behalf of the State. 17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief. 18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura. 19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003.
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17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak
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Karam Chand Thapar and Bros. Limited, and Others Vs. Their Workmen | in their appeal contend that the Bengal Chamber of Commerce rate of dearness allowance should have been allowed. Dealing with this question the tribunal has pointed out that almost all the constituent members of the Bengal Chamber of Commerce have had long experience in industrial field, having started their business in India many years before the commencement of the present century. There is therefore no reasonable basis for asking companies like Karam Chand Thapar & Bros., Ltd., which was started only about 35 years ago, to bear the burden of the dearness allowance paid by members of the Bengal chamber of commerce. Though therefore it is true that the clerical staff of members of the Bengal Chamber of Commerce and the clerical staff of this company are drawn from the same social class having similar conditions of living and living standards, we think there is considerable weight in the reason given by the tribunal for awarding dearness allowance at some - what lesser rates than the Bengal Chamber of Commerce rates.The objections by the company as well as the workmen to the award on the issue of dearness allowance must therefore fail.14. The sixth matter in dispute mentioned is the first order of reference was leave and leave allowance. On behalf of the company Sri Sastri urges that the provisions in the award that in case of protracted illness an employee who had served the company for less than five years should be allowed leave without pay up to six months is unreasonable. We think there is considerable force in this contention. In the award as it stands, an employee who has served for say, even for one year, would be entitled to leave for a period up to six months in the case of protected illness. It is true that this will be without pay. But the companys difficulty would be that it would not be able to engage new men on permanent basis in place of such employees. It appears to us that the workmen who had served the company for less than five years can be generally said not to have become so much part of the company that this special privilege should be granted to them. We therefore set aside the provision in the award that an employee who has served the company for less than five years should be allowed leave without pay for a period up to six months.The workmen in their appeal claim that the tribunal should have granted their prayer of sick leave on full pay instead of half wages as at present. It has to be remembered that sick leave is allowed to the workmen in addition to eighteen days privilege leave in the year and ten days casual leave in the year for clerical staff and fifteen days privilege leave and ten days casual leave to the subordinate staff. There is thus no justification for the workmens claim for sick leave on full wages.15. On the question of overtime allowance which forms item 7 in the first order of reference, the award fixes the rate at 1.25 wages inclusive of dearness allowance for every hour or part of an hours work done beyond 5 p.m. on week days and 2 p.m. on Saturdays. On behalf of the company, Sri Sastri contends that the dearness allowance should not be taken into consideration in the overtime allowance. In support of the workmens appeal Sri Chatterjee has contended that overtime allowance should be at the rate twice the wages and dearness allowance. On the one hand we think that on principle overtime allowance should have relation to the total wage packet, viz., basic wage plus dearness allowance, and that there is no reason to interfere with the tribunals decision on this point; on the other hand we do not find anything to justify raising it to more than 1.25 the wages as granted by the tribunal on a consideration of the financial capacity of the company as also the practice prevalent in other concerns in the neighbourhood.16. The claim for bonus was disallowed by the tribunal. The workmen in their appeal have challenged the correctness of this part of the award. It appears that some bonus has already been paid by the company for the year 1953-54 and advances equal to one month and seven days pay have also been taken for the year 1954-55. By consent of the parties on the question of bonus for these years, we order that no additional bonus be paid for the year 1953-54 and that in respect of the year 1954-55 the advances of one month and seven days pay should be treated as payment of bonus but that nothing further should be paid by way of bonus. These directions by content of the parties will be without prejudice to any claim for bonus for future years.The only other item of dispute that remains for consideration is issue 2 in the first order of reference which is in these words :"Whether any sum is payable to the twelve workmen mentioned in the attached list A or to any other workmen on account of fitting them in grades and scales laid down in the decision of the Labour Appellate Tribunal of India dated 12 September 1952."17. The tribunal has refused to give any relief to the workmen on this issue. It is pointed out that the claim of the workmen is based on an assumption that under the directions given in the previous award the basic pay of the workmen should have been fixed in the revised grades and scales of pay at a stage next higher to the point arrived at after addition of Rs. 10 to the existing pay. This assumption is clearly not justified by the terms of Labour Appellate Tribunals award and no relief can now be claimed, as sought to be claimed, on the presumption that such a direction was intended. The workmens attack against this portion of the award therefore fails. | 0[ds]Sri Sastri has very rightly not raised before us the objection that was raised beforethe tribunal toits jurisdiction to decide this question. It is obvious that the contentionen that Karam Chand Thapar & Bros., Ltd., was their employer formed the basis of all their claims and as this contention was seriously contested, except as regards 18 persons, by this company and also the companies under its management, the matter had necessarily to be decided by theIn our opinion, this argument is wholly unwarranted.The company admittedly functions as the managing agents of 3036 associated companies mentioned in the references. It is further admitted that the company did originally act as the managing agentser six companies also. It appears however that prior to the date of reference the company had in form given up its managing agency as regards those six concerns, viz., Indian City Properties, Ltd., Jagatjit Cotton Textiles Mills, Ltd., Karam Chand Thapar & Bros., Ltd., Karam Chand Thapar & Bros. (Coal Sales), Ltd., Modern Agencies Mills, Ltd., Produce Exchange Corporation, Ltd., and Sri Sitaram Sugar Mills, Ltd. The company had its head office at 5, Royal Exchange Place,It appears from Ex. 30 that this head office was shifted on 23 January, 1960 to its new premises, at Thaper House, 25, Brabourne Road,It is interesting to notice that in this document which is a copy of an advertisement published in the daily Amrita Bazar Patrika about the shifting to the new premises, the language is "from 23 January, 1960 our head office is shifting to its new premises, Thaper House, 25, Brabourne Road,Then follow the names of 36 concerns mentioned in the reference and some others followed by the name "Karam Chand Thapar & Bros. (Private), Ltd."It is not disputed that the workmen before us work in this building. Their case is that they are employees of Karam Chand Thapar & Bros. (Private), Ltd., at this heads case as also the caseed companies is that only eighteenen are the companys workmen and the remaining 378 working in this building are not the companys employees. It is said that 255m are common employees of different groupsed companies, while 123 are the exclusive employees of different concerns.It is difficult to see how as regards those who are said to be common employees of different groups of concerns it can even be seriously argued that they are the employees of anye concerns. It is true that the mere fact that Karam Chand Thapar & Bros. appointed these men would not be sufficient to show that Karam Chand Thapar & Bros., Ltd., are their employers. For under the termsmanaging agency agreement the managing agents are empowered to make appointmentsed concerns. We have however the additional important fact that the allotmentthese common employeesto particular concerns is wholly in the handscompany, Karam Chand Thapar & Bros., Ltd. The tribunal has recorded a definite finding that the company used to transfer employees from one concern to the other or from one group of concerns to the other. There is nothing before us that would justify us in interfering with this finding of fact. On the contrary, the several appointment letters to which Sri Sastri drew our attention do indicate that the managing agents keep in their hands the right to employthese common employeesfor doing the work of one membergroup or another just as they thought fit and proper. It appears also that there is one provident fund scheme controlled by the company through a board a trustees selected by the company for all these employees. These and other circumstance which have been mentioned in detail by the tribunal fully justify the tribunals conclusion that these persons, said to be common employees of different concerns, are really the employeescompany, Karam Chand Thapar & Bros.,In the present case the tribunal thinks that the terms used in the new appointment letters were a mere device to conceal the real state of affairs. The tribunal has discussed in detail the evidence of witnesses showing that even in the casee persons said to be employees of particular concerns only, the serviceses were transferred from one concern to another at the directionthe managing agentsand that every such person was "completely in the controlny in the matter of making his service available to anye concerns at any moment." We are satisfied that there is ample evidence on the recordthe tribunals decisionand there is nothing that would justify us in interfering with it.SriSastri also drew our attention to the fact that for sixes Karam Chand Thapar & Bros. had ceased to be managingagents. Apart from the fact that according to the tribunal this cessation of managing agency is only in form and that in fact the company has continued to manage these six concerns also, we do not see how this question is at all relevant if as in our opinion; the tribunal has rightly found that the employees are the workmen of Karam Chand Thapar & Bros., Ltd. The fact that this company ceased to manage one or more companies, formerly under its managing agency, cannot in law affect the status of employees.7. We are therefore of opinion that the decisionthe tribunal that theworkmen were workmenof Karam Chand Thapar & Bros., Ltd.,s, andnot the workmener companies, cannot be successfullys case was that, having regard to the nature of duties of peons and sweepers, it was not practicable to observe the same hours for them as for otheremployees. It has been rightly pointed out that for a proper workingce it is necessary that sweepers and peons should start their work sometime before other employees come and should stay on for some time after the other employees depart. The tribunal has recognized this position and has ordered that it will be open to the company to direct these subordinate staff to attend officebefore the normal time to be regulated by a system of rotation subject to overtime wages being paid at the rates fixed by the award. For working beyondp.m. on week days andp.m. on Saturday, also the tribunal has ordered that these employees should be entitled to overtime payment. In our opinion, these directions are just and proper.Issue3 was with respect to the companys holding up annual increment in seventeen cases.The tribunal refused relief as regards some; as regards the test it directed that their pay should be fixed in their next stage in the scale with effect from 1 April, 1953 and the company should pay them the arrears in wages arising from the deficiency for not giving the annual increment. Thesole point raised by Sri Sastri was that to give annual increment or not was at the absolute discretioncompany, and so the withholding of increments on 1 April, 1963 in considerationthe fact thatthese employees had their pay fixed under the previous award with effect from 12 September, 1952 and thereby secured an increase in their wages, is fullyjustified. We are unable to find any support in principle or authority for the submission that granting or withholding of annual increments is at the absolute discretionthe employer andtherefore find no reason to interfere withthe tribunals decisions main criticism against the award is that the tribunal has given the workmen more than theirof theworkmen, Sri Chatterjee denied this and expressed his willingness to have the award modified by giving the workmen the two grades A and B as claimed byri at first was agreeable to this suggestion but ultimately admitted that theas granted by the award were less favourable than what had beenclaimed. In view of this we think his attack against the award in the matter ofmust be rejected.The tribunal has give detailed directions as regards the adjustment of employees on the old B grade and the old A grade in the new grade A as awarded by it. It has however given no directions as regards the adjustmentay of employees on the old grades C and D in the new grades B and C which respectively replaced them. The workmen in their appeal have prayed for proper directions for adjustment, similar to those given by the tribunal in respectthe new grades B andC. It appears to us to be necessary to direct that employees on the old grade C and the old grade D should be fitted intothe new grades B andC at the next higher scale of pay. We do not think we shall be justified in making any further directions in the matter.On an examinationer we are of opinion that the tribunal is on the whole justified in its conclusion that "the company is in the path of steady prosperity and it would be fair and appropriate to increase the rate of dearness allowance."The tribunal has rejected the workmens claim to the rate of dearness allowance as under the Bengal Chamber of Commerce but has awarded it at the rate of 100 per cent for Rs. 100, 50 per cent on the next Rs. 100 and 25 per cent on the remaining salary for the clerical staff. For the subordinate staff the tribunal has increased the old rate of dearness allowance from Rs. 45 to Rs. 48.The workmen in their appeal contend that the Bengal Chamber of Commerce rate of dearness allowance should have beenallowed. Dealing with this question the tribunal has pointed out that almost all the constituent membersthe Bengal Chamber of Commercehave had long experience in industrial field, having started their business in India many years before the commencementnt century. There is therefore no reasonable basis for asking companies like Karam Chand Thapar & Bros., Ltd., which was started only about 35 years ago, to bear the burdenthe dearness allowancepaid by membersBengal chamber of commerce. Though therefore it is true that the clerical staff of memberse Bengal Chamber of Commerceand the clerical staff of this company are drawn from the same social class having similar conditions of living and living standards, we think there is considerable weight in the reason given by the tribunal for awarding dearness allowance at somewhat lesser rates thanBengal Chamber of Commercerates.The objections by the company as well as the workmen to the award on the issue of dearness allowance must therefore fail.14.The sixth matter in dispute mentioned is the first order of reference was leave and leavethink there is considerable force in this contention. In the award as it stands, an employee who has served for say, even for one year, would be entitled to leave for a period up to six months in the case of protected illness. It is true that this will be without pay. But the companys difficulty would be that it would not be able to engage new men on permanent basis in place of such employees. It appears to us that the workmen who had served the company for less than five years can be generally said not to have become so much partp.m. on week days and2 p.m. onOn the one hand we think that on principle overtime allowance should have relation to the total wage packet, viz., basic wage plus dearness allowance, and that there is no reason to interfere withthe tribunals decisionon this point; on the other hand we do not find anything to justify raising it to more than 1.25 the wages as granted by the tribunal on a considerationthe company asalso the practice prevalent in other concerns in the neighbourhood.16.The claim for bonus was disallowed by the tribunal. The workmen in their appeal have challenged the correctness of this part | 0 | 4,511 | 2,062 | ### Instruction:
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in their appeal contend that the Bengal Chamber of Commerce rate of dearness allowance should have been allowed. Dealing with this question the tribunal has pointed out that almost all the constituent members of the Bengal Chamber of Commerce have had long experience in industrial field, having started their business in India many years before the commencement of the present century. There is therefore no reasonable basis for asking companies like Karam Chand Thapar & Bros., Ltd., which was started only about 35 years ago, to bear the burden of the dearness allowance paid by members of the Bengal chamber of commerce. Though therefore it is true that the clerical staff of members of the Bengal Chamber of Commerce and the clerical staff of this company are drawn from the same social class having similar conditions of living and living standards, we think there is considerable weight in the reason given by the tribunal for awarding dearness allowance at some - what lesser rates than the Bengal Chamber of Commerce rates.The objections by the company as well as the workmen to the award on the issue of dearness allowance must therefore fail.14. The sixth matter in dispute mentioned is the first order of reference was leave and leave allowance. On behalf of the company Sri Sastri urges that the provisions in the award that in case of protracted illness an employee who had served the company for less than five years should be allowed leave without pay up to six months is unreasonable. We think there is considerable force in this contention. In the award as it stands, an employee who has served for say, even for one year, would be entitled to leave for a period up to six months in the case of protected illness. It is true that this will be without pay. But the companys difficulty would be that it would not be able to engage new men on permanent basis in place of such employees. It appears to us that the workmen who had served the company for less than five years can be generally said not to have become so much part of the company that this special privilege should be granted to them. We therefore set aside the provision in the award that an employee who has served the company for less than five years should be allowed leave without pay for a period up to six months.The workmen in their appeal claim that the tribunal should have granted their prayer of sick leave on full pay instead of half wages as at present. It has to be remembered that sick leave is allowed to the workmen in addition to eighteen days privilege leave in the year and ten days casual leave in the year for clerical staff and fifteen days privilege leave and ten days casual leave to the subordinate staff. There is thus no justification for the workmens claim for sick leave on full wages.15. On the question of overtime allowance which forms item 7 in the first order of reference, the award fixes the rate at 1.25 wages inclusive of dearness allowance for every hour or part of an hours work done beyond 5 p.m. on week days and 2 p.m. on Saturdays. On behalf of the company, Sri Sastri contends that the dearness allowance should not be taken into consideration in the overtime allowance. In support of the workmens appeal Sri Chatterjee has contended that overtime allowance should be at the rate twice the wages and dearness allowance. On the one hand we think that on principle overtime allowance should have relation to the total wage packet, viz., basic wage plus dearness allowance, and that there is no reason to interfere with the tribunals decision on this point; on the other hand we do not find anything to justify raising it to more than 1.25 the wages as granted by the tribunal on a consideration of the financial capacity of the company as also the practice prevalent in other concerns in the neighbourhood.16. The claim for bonus was disallowed by the tribunal. The workmen in their appeal have challenged the correctness of this part of the award. It appears that some bonus has already been paid by the company for the year 1953-54 and advances equal to one month and seven days pay have also been taken for the year 1954-55. By consent of the parties on the question of bonus for these years, we order that no additional bonus be paid for the year 1953-54 and that in respect of the year 1954-55 the advances of one month and seven days pay should be treated as payment of bonus but that nothing further should be paid by way of bonus. These directions by content of the parties will be without prejudice to any claim for bonus for future years.The only other item of dispute that remains for consideration is issue 2 in the first order of reference which is in these words :"Whether any sum is payable to the twelve workmen mentioned in the attached list A or to any other workmen on account of fitting them in grades and scales laid down in the decision of the Labour Appellate Tribunal of India dated 12 September 1952."17. The tribunal has refused to give any relief to the workmen on this issue. It is pointed out that the claim of the workmen is based on an assumption that under the directions given in the previous award the basic pay of the workmen should have been fixed in the revised grades and scales of pay at a stage next higher to the point arrived at after addition of Rs. 10 to the existing pay. This assumption is clearly not justified by the terms of Labour Appellate Tribunals award and no relief can now be claimed, as sought to be claimed, on the presumption that such a direction was intended. The workmens attack against this portion of the award therefore fails.
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rightly pointed out that for a proper workingce it is necessary that sweepers and peons should start their work sometime before other employees come and should stay on for some time after the other employees depart. The tribunal has recognized this position and has ordered that it will be open to the company to direct these subordinate staff to attend officebefore the normal time to be regulated by a system of rotation subject to overtime wages being paid at the rates fixed by the award. For working beyondp.m. on week days andp.m. on Saturday, also the tribunal has ordered that these employees should be entitled to overtime payment. In our opinion, these directions are just and proper.Issue3 was with respect to the companys holding up annual increment in seventeen cases.The tribunal refused relief as regards some; as regards the test it directed that their pay should be fixed in their next stage in the scale with effect from 1 April, 1953 and the company should pay them the arrears in wages arising from the deficiency for not giving the annual increment. Thesole point raised by Sri Sastri was that to give annual increment or not was at the absolute discretioncompany, and so the withholding of increments on 1 April, 1963 in considerationthe fact thatthese employees had their pay fixed under the previous award with effect from 12 September, 1952 and thereby secured an increase in their wages, is fullyjustified. We are unable to find any support in principle or authority for the submission that granting or withholding of annual increments is at the absolute discretionthe employer andtherefore find no reason to interfere withthe tribunals decisions main criticism against the award is that the tribunal has given the workmen more than theirof theworkmen, Sri Chatterjee denied this and expressed his willingness to have the award modified by giving the workmen the two grades A and B as claimed byri at first was agreeable to this suggestion but ultimately admitted that theas granted by the award were less favourable than what had beenclaimed. In view of this we think his attack against the award in the matter ofmust be rejected.The tribunal has give detailed directions as regards the adjustment of employees on the old B grade and the old A grade in the new grade A as awarded by it. It has however given no directions as regards the adjustmentay of employees on the old grades C and D in the new grades B and C which respectively replaced them. The workmen in their appeal have prayed for proper directions for adjustment, similar to those given by the tribunal in respectthe new grades B andC. It appears to us to be necessary to direct that employees on the old grade C and the old grade D should be fitted intothe new grades B andC at the next higher scale of pay. We do not think we shall be justified in making any further directions in the matter.On an examinationer we are of opinion that the tribunal is on the whole justified in its conclusion that "the company is in the path of steady prosperity and it would be fair and appropriate to increase the rate of dearness allowance."The tribunal has rejected the workmens claim to the rate of dearness allowance as under the Bengal Chamber of Commerce but has awarded it at the rate of 100 per cent for Rs. 100, 50 per cent on the next Rs. 100 and 25 per cent on the remaining salary for the clerical staff. For the subordinate staff the tribunal has increased the old rate of dearness allowance from Rs. 45 to Rs. 48.The workmen in their appeal contend that the Bengal Chamber of Commerce rate of dearness allowance should have beenallowed. Dealing with this question the tribunal has pointed out that almost all the constituent membersthe Bengal Chamber of Commercehave had long experience in industrial field, having started their business in India many years before the commencementnt century. There is therefore no reasonable basis for asking companies like Karam Chand Thapar & Bros., Ltd., which was started only about 35 years ago, to bear the burdenthe dearness allowancepaid by membersBengal chamber of commerce. Though therefore it is true that the clerical staff of memberse Bengal Chamber of Commerceand the clerical staff of this company are drawn from the same social class having similar conditions of living and living standards, we think there is considerable weight in the reason given by the tribunal for awarding dearness allowance at somewhat lesser rates thanBengal Chamber of Commercerates.The objections by the company as well as the workmen to the award on the issue of dearness allowance must therefore fail.14.The sixth matter in dispute mentioned is the first order of reference was leave and leavethink there is considerable force in this contention. In the award as it stands, an employee who has served for say, even for one year, would be entitled to leave for a period up to six months in the case of protected illness. It is true that this will be without pay. But the companys difficulty would be that it would not be able to engage new men on permanent basis in place of such employees. It appears to us that the workmen who had served the company for less than five years can be generally said not to have become so much partp.m. on week days and2 p.m. onOn the one hand we think that on principle overtime allowance should have relation to the total wage packet, viz., basic wage plus dearness allowance, and that there is no reason to interfere withthe tribunals decisionon this point; on the other hand we do not find anything to justify raising it to more than 1.25 the wages as granted by the tribunal on a considerationthe company asalso the practice prevalent in other concerns in the neighbourhood.16.The claim for bonus was disallowed by the tribunal. The workmen in their appeal have challenged the correctness of this part
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M/S. Reliance Salt Ltd Vs. M/S. Cosmos Enterprises | No.1 is guilty of misconduct, irregularity, deception, misrepresentation and fraud etc. and under the circumstances, the defendant has no right to invoke the bank guarantee." Paragraphs 11, 16 and 19 of the pleadings and the evidences adduced on behalf of 1st Respondent, thus, were confined to the issue of inferior quality of supply, late supply and short supply of consignments. "Fraud" is defined in Section 17 of the Indian Contract Act, 1872 in the following terms : "S.17. "Fraud" defined. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2) the active concealment of a fact by one having knowledge or belief of the fact;(3) a promise made without any intention of performing it;(4) any other act fitted to deceive;(5) any such act or omission as the law specifically declares to be fraudulent.Explanation. Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech." 17. A bare perusal of the contents of the Bank Guarantee, as noticed hereinbefore, shows that there is no escape from arriving at a conclusion that the guarantee furnished was an unconditional one. It not only provided for loss or damage in case of breach of contract, but also loss or damage by reason of non-settlement of bills. Such bills under the agreement of consignment were to be settled within a period of 30 days. In the event the bills are not settled within the period stipulated in the agreement, the parties intended, as it appears from the tenor of the Bank Guarantee, that the same would constitute a breach of contract. It is not in dispute that some amount was due to the Appellant from the Respondent. The suit was not a suit for settlement of accounts. The suit was, inter alia, only for a decree for injunction restraining Appellant from invoking the Bank Guarantee. Respondent No.2-Bank, indisputably, did not controvert allegations contained in the demand of the appellant. It did not contest the suit. It even did not support Plaintiff-Respondent No.1 before the learned Trial Judge or before the High Court.18. A claim which is denied or disputed, in the event of necessity for determination of the lis, may not be found to be correct. If Appellant was to allege a breach of contract in a properly framed suit, Respondent No.1 could also allege the breach of contract on the part of Appellant herein. Breach of contract by reason of supply of inferior quality of tea or salt or delay in supply or a short supply may render a party responsible for damages for commission of breach of contract, but, breach of contract alone does not lead to the conclusion that a fraud had been committed thereby. It is contended that commission of fraud would include any act to deceive but then such act must be confined to acts committed by a party to a contract with intention to deceive another party or his agent or to induce him to enter into a contract. Fraud, which vitiates the contract, must have a nexus with the acts of the parties prior to entering into the contract. Subsequent breach of contract on the part of a party would not vitiate the contract itself. 19. "Contract of guarantee" is defined under Section 126 of the Indian Contract Act in the following terms : "126. Contract of guarantee, surety, principal debtor and creditor A contract of guarantee is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the surety; the person in respect of whose default the guarantee is given is called the principal debtor and the person to whom the guarantee is given is called the creditor. A guarantee may be either oral or written." 20. Bank Guarantee constitutes an agreement between the Banker and the Principal, albeit, at the instance of the promisor. When a contract of guarantee is sought to be invoked, it was primarily for the bank to plead a case of fraud and not for a promisor to set up a case of breach of contract. 21. The discrepancies in the bills or non-submission of the detailed account in respect of business cannot be a ground for denial of encashment of Bank Guarantee if it is otherwise invokable. 22. Although, the learned Trial Judge as also the High Court observed that the Bank Guarantee was invokable after lapse of 30 days from date of the bill, as stipulated therein, on its own terms the Bank was bound to pay the amount in question on its invokation, subject of course to the fulfillment of the other conditions laid down therein. It could not have refused to honour its commitment only because the purported accounts were not settled between the parties or the accounts furnished to the Court were wrong ones. The other reasons assigned by the learned Trial Judge as also the High Court that the conduct of Appellant was not clean or it had tried to defraud other customers in other parts of the State, in our considered opinion, are of not much significance in view of the nature of the guarantee furnished by the Bank.23. Submission of Mr. Ranjit Kumar that after the judgment of the High Court the 1st Respondent has got all documents released, cannot be a ground to refuse invokation of Bank Guarantee by Appellant, if it was otherwise entitled thereto. | 1[ds]17. A bare perusal of the contents of the Bank Guarantee, as noticed hereinbefore, shows that there is no escape from arriving at a conclusion that the guarantee furnished was an unconditional one. It not only provided for loss or damage in case of breach of contract, but also loss or damage by reason of non-settlement of bills. Such bills under the agreement of consignment were to be settled within a period of 30 days. In the event the bills are not settled within the period stipulated in the agreement, the parties intended, as it appears from the tenor of the Bank Guarantee, that the same would constitute a breach of contract. It is not in dispute that some amount was due to the Appellant from the Respondent. The suit was not a suit for settlement of accounts. The suit was, inter alia, only for a decree for injunction restraining Appellant from invoking the Bank Guarantee. Respondent No.2-Bank, indisputably, did not controvert allegations contained in the demand of the appellant. It did not contest the suit. It even did not support Plaintiff-Respondent No.1 before the learned Trial Judge or before the High Court.18. A claim which is denied or disputed, in the event of necessity for determination of the lis, may not be found to be correct. If Appellant was to allege a breach of contract in a properly framed suit, Respondent No.1 could also allege the breach of contract on the part of Appellant herein. Breach of contract by reason of supply of inferior quality of tea or salt or delay in supply or a short supply may render a party responsible for damages for commission of breach of contract, but, breach of contract alone does not lead to the conclusion that a fraud had been committed thereby. It is contended that commission of fraud would include any act to deceive but then such act must be confined to acts committed by a party to a contract with intention to deceive another party or his agent or to induce him to enter into a contract. Fraud, which vitiates the contract, must have a nexus with the acts of the parties prior to entering into the contract. Subsequent breach of contract on the part of a party would not vitiate the contract itself.Although, the learned Trial Judge as also the High Court observed that the Bank Guarantee was invokable after lapse of 30 days from date of the bill, as stipulated therein, on its own terms the Bank was bound to pay the amount in question on its invokation, subject of course to the fulfillment of the other conditions laid down therein. It could not have refused to honour its commitment only because the purported accounts were not settled between the parties or the accounts furnished to the Court were wrong ones. The other reasons assigned by the learned Trial Judge as also the High Court that the conduct of Appellant was not clean or it had tried to defraud other customers in other parts of the State, in our considered opinion, are of not much significance in view of the nature of the guarantee furnished by the Bank.23. Submission of Mr. Ranjit Kumar that after the judgment of the High Court the 1st Respondent has got all documents released, cannot be a ground to refuse invokation of Bank Guarantee by Appellant, if it was otherwise entitled thereto. | 1 | 3,506 | 618 | ### 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:
No.1 is guilty of misconduct, irregularity, deception, misrepresentation and fraud etc. and under the circumstances, the defendant has no right to invoke the bank guarantee." Paragraphs 11, 16 and 19 of the pleadings and the evidences adduced on behalf of 1st Respondent, thus, were confined to the issue of inferior quality of supply, late supply and short supply of consignments. "Fraud" is defined in Section 17 of the Indian Contract Act, 1872 in the following terms : "S.17. "Fraud" defined. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2) the active concealment of a fact by one having knowledge or belief of the fact;(3) a promise made without any intention of performing it;(4) any other act fitted to deceive;(5) any such act or omission as the law specifically declares to be fraudulent.Explanation. Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech." 17. A bare perusal of the contents of the Bank Guarantee, as noticed hereinbefore, shows that there is no escape from arriving at a conclusion that the guarantee furnished was an unconditional one. It not only provided for loss or damage in case of breach of contract, but also loss or damage by reason of non-settlement of bills. Such bills under the agreement of consignment were to be settled within a period of 30 days. In the event the bills are not settled within the period stipulated in the agreement, the parties intended, as it appears from the tenor of the Bank Guarantee, that the same would constitute a breach of contract. It is not in dispute that some amount was due to the Appellant from the Respondent. The suit was not a suit for settlement of accounts. The suit was, inter alia, only for a decree for injunction restraining Appellant from invoking the Bank Guarantee. Respondent No.2-Bank, indisputably, did not controvert allegations contained in the demand of the appellant. It did not contest the suit. It even did not support Plaintiff-Respondent No.1 before the learned Trial Judge or before the High Court.18. A claim which is denied or disputed, in the event of necessity for determination of the lis, may not be found to be correct. If Appellant was to allege a breach of contract in a properly framed suit, Respondent No.1 could also allege the breach of contract on the part of Appellant herein. Breach of contract by reason of supply of inferior quality of tea or salt or delay in supply or a short supply may render a party responsible for damages for commission of breach of contract, but, breach of contract alone does not lead to the conclusion that a fraud had been committed thereby. It is contended that commission of fraud would include any act to deceive but then such act must be confined to acts committed by a party to a contract with intention to deceive another party or his agent or to induce him to enter into a contract. Fraud, which vitiates the contract, must have a nexus with the acts of the parties prior to entering into the contract. Subsequent breach of contract on the part of a party would not vitiate the contract itself. 19. "Contract of guarantee" is defined under Section 126 of the Indian Contract Act in the following terms : "126. Contract of guarantee, surety, principal debtor and creditor A contract of guarantee is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the surety; the person in respect of whose default the guarantee is given is called the principal debtor and the person to whom the guarantee is given is called the creditor. A guarantee may be either oral or written." 20. Bank Guarantee constitutes an agreement between the Banker and the Principal, albeit, at the instance of the promisor. When a contract of guarantee is sought to be invoked, it was primarily for the bank to plead a case of fraud and not for a promisor to set up a case of breach of contract. 21. The discrepancies in the bills or non-submission of the detailed account in respect of business cannot be a ground for denial of encashment of Bank Guarantee if it is otherwise invokable. 22. Although, the learned Trial Judge as also the High Court observed that the Bank Guarantee was invokable after lapse of 30 days from date of the bill, as stipulated therein, on its own terms the Bank was bound to pay the amount in question on its invokation, subject of course to the fulfillment of the other conditions laid down therein. It could not have refused to honour its commitment only because the purported accounts were not settled between the parties or the accounts furnished to the Court were wrong ones. The other reasons assigned by the learned Trial Judge as also the High Court that the conduct of Appellant was not clean or it had tried to defraud other customers in other parts of the State, in our considered opinion, are of not much significance in view of the nature of the guarantee furnished by the Bank.23. Submission of Mr. Ranjit Kumar that after the judgment of the High Court the 1st Respondent has got all documents released, cannot be a ground to refuse invokation of Bank Guarantee by Appellant, if it was otherwise entitled thereto.
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17. A bare perusal of the contents of the Bank Guarantee, as noticed hereinbefore, shows that there is no escape from arriving at a conclusion that the guarantee furnished was an unconditional one. It not only provided for loss or damage in case of breach of contract, but also loss or damage by reason of non-settlement of bills. Such bills under the agreement of consignment were to be settled within a period of 30 days. In the event the bills are not settled within the period stipulated in the agreement, the parties intended, as it appears from the tenor of the Bank Guarantee, that the same would constitute a breach of contract. It is not in dispute that some amount was due to the Appellant from the Respondent. The suit was not a suit for settlement of accounts. The suit was, inter alia, only for a decree for injunction restraining Appellant from invoking the Bank Guarantee. Respondent No.2-Bank, indisputably, did not controvert allegations contained in the demand of the appellant. It did not contest the suit. It even did not support Plaintiff-Respondent No.1 before the learned Trial Judge or before the High Court.18. A claim which is denied or disputed, in the event of necessity for determination of the lis, may not be found to be correct. If Appellant was to allege a breach of contract in a properly framed suit, Respondent No.1 could also allege the breach of contract on the part of Appellant herein. Breach of contract by reason of supply of inferior quality of tea or salt or delay in supply or a short supply may render a party responsible for damages for commission of breach of contract, but, breach of contract alone does not lead to the conclusion that a fraud had been committed thereby. It is contended that commission of fraud would include any act to deceive but then such act must be confined to acts committed by a party to a contract with intention to deceive another party or his agent or to induce him to enter into a contract. Fraud, which vitiates the contract, must have a nexus with the acts of the parties prior to entering into the contract. Subsequent breach of contract on the part of a party would not vitiate the contract itself.Although, the learned Trial Judge as also the High Court observed that the Bank Guarantee was invokable after lapse of 30 days from date of the bill, as stipulated therein, on its own terms the Bank was bound to pay the amount in question on its invokation, subject of course to the fulfillment of the other conditions laid down therein. It could not have refused to honour its commitment only because the purported accounts were not settled between the parties or the accounts furnished to the Court were wrong ones. The other reasons assigned by the learned Trial Judge as also the High Court that the conduct of Appellant was not clean or it had tried to defraud other customers in other parts of the State, in our considered opinion, are of not much significance in view of the nature of the guarantee furnished by the Bank.23. Submission of Mr. Ranjit Kumar that after the judgment of the High Court the 1st Respondent has got all documents released, cannot be a ground to refuse invokation of Bank Guarantee by Appellant, if it was otherwise entitled thereto.
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State Of Tamilnadu Vs. M.R. Alagappan | to the contesting respondents. Our attention was then invited by learned counsel for the respondents to a decision of this Court in the case of Jaipal and others v. State of Haryana and others, JT 1988(2) SC 528 : 1988 Supp. 1 SCR 411. In this decision another Division Bench of this Court speaking through K.N. Singh, J. had to consider two identical schemes floated by the State of Haryana with the object of imparting literacy (functional and awareness) to adult illiterates and to provide literacy to children keeping away from schools. Even though the petitioners were discharging the same type of duties as instructors they were being paid a fixed salary of Rs. 200/- per month while under the second scheme, the employees discharging similar duties were offered a running pay scale of Rs. 420-700/-. On facts it was found that there was no difference in the nature of duties of the instructor and squad teachers. Both of them carried out similar work under the same employer and only on the ground that the instructors were part-time employees they could not be offered a fixed salary of Rs. 200/- per month. It becomes at once clear that there was no difference of educational qualifications amongst these twin sets of employees and the only ground on which difference of payment could be justified by the State was that they were employed under a different scheme and were working part-time only for four hours. On these peculiar facts of the case, therefore, it was held that instructors were entitled to same pay scale as sanctioned to squad teachers on the principle of Equal Pay or Equal Work. As the said decision also is rendered in the light of its peculiar facts it is not possible to agree with the learned counsel for the contesting respondents that the ratio of the said decision also gets squarely attracted to the facts of the present case. It is now time for us to take stock of the situation. 18. Keeping in view the aforesaid settled legal position, therefore, it has to be seen whether the Deputy Agricultural Officers and the Agricultural Officers can be said to form an identical class of employees who must be given the same pay scales and denial of which can be said to offend Articles 14 and 16 of the Constitution of India. In the light of the well established facts on the record of these cases, to which we have made a reference earlier, it is impossible to hold that the Deputy Agricultural Officers like the contesting respondents are required to be given the same pay scale as Agricultural Officers. Reasons are obvious. They do not form a similar class of employees even though they may be substantially discharging the same type of duties and their place of work may be interchangeable. A glaring difference which results into making them fall in a distinct and separate category of employees deserves to be kept in view. In the first place the contesting respondents are recruited by promotion from the lower category of Assistant Agricultural Officers. On promotion as Deputy Agricultural Officers they remain non- gazetted employees in the subordinate service in the Tamil Nadu Agricultural Extension Subordinate Service while the Agricultural Officers are directly recruited to a gazetted service called Tamil Nadu Agricultural Extension Service. The contesting respondents are promoted departmentally while the Agricultural Officers are directly selected through Tamil Nadu Public Service Commission. The minimum educational qualification for being an Agricultural Officer (direct recruit) is B.Sc. (Agriculture) while for a promotee-Deputy Agricultural Officer the minimum educational qualification is SSLC with suitable diploma as laid down by the Rules. Though substantially they carry out the same type of work and duties, important assignments are exclusively entrusted to Agricultural Officers as seen from para 5 of the additional affidavit filed by Shri V. Srinivasan, Deputy Secretary to Government at page 193 of the paper book, as noted earlier. The special duties which can be entrusted only to Agricultural Officers are listed as under : "(a) draw samples of Insecticides(b) draw samples of fertilizers(c) draw seed samples(d) analyse the soil water samples(e) work in the Regional Research Station(f) work in the State Seed Farm(g) work in the Laboratories(h) do soil survey work(i) can be appointed in delta areas. 19. Of course learned counsel for the contesting respondents submitted that in certain circumstances even the task of drawing samples is also being entrusted to Deputy Agricultural Officers. That may be so. But the special quality of work which the directly recruited Agricultural Officers have to put in substantially differs from the quality of work which can be entrusted to Deputy Agricultural Officers like the contesting respondents. As noted earlier out of the total posts of Agricultural Officers under the Agriculture Department of the appellant-State only 1018 posts can be made available for Deputy Agricultural Officers on interchangeable basis. 1372 posts are exclusively meant to be manned by directly recruited Agricultural Officers. In view of these distinguishing features between the two groups of employees and especially in the light of the further fact that they form two separate cadres of gazetted and non-gazetted officers governed by different sets of service rules which in turn required maintenance of separate seniority lists, and on which aspect also there was no dispute between the parties, it is not possible to agree with the contention of learned counsel for the contesting respondents that only on the doctrine of Equal Pay for Equal Work the pay scale available to gazetted employees like Agricultural Officers must of necessity be made available to non-gazetted employees like Deputy Agricultural Officers on the pain of Articles 14 and 16 of the Constitution of India. In our view the Tribunal had patently erred in applying the said doctrine to the facts of the present cases. The decision of the Tribunal amounts to giving equal treatment to totally distinct and unequal categories of employees. The common judgment of the Tribunal, therefore, cannot be sustained. | 1[ds]17. It becomes at once clear that in that case this Court was not concerned with a situation wherein there was dissimilarity of educational qualifications among the concerned groups of employees who were not offered the same pay scale. On the contrary in para 12 of the Report it has been clearly observed that the petitioners before this Court possessed the same qualifications, namely, B.A., B.Ed. as were possessed by the employees in the regular cadre and some of the petitioners before this Court were having even higher degrees like M.A., M.Ed. Under these circumstances when the State failed to establish different types of duties being discharged by these employees parity of pay scales was ordered to be granted to the petitioners. However the fact situation in the present case is entirely different. Hence no assistance can be rendered by the aforesaid decision to the contesting respondents. Our attention was then invited by learned counsel for the respondents to a decision of this Court in the case of Jaipal and others v. State of Haryana and others, JT 1988(2) SC 528 : 1988 Supp. 1 SCR 411. In this decision another Division Bench of this Court speaking through K.N. Singh, J. had to consider two identical schemes floated by the State of Haryana with the object of imparting literacy (functional and awareness) to adult illiterates and to provide literacy to children keeping away from schools. Even though the petitioners were discharging the same type of duties as instructors they were being paid a fixed salary of Rs. 200/- per month while under the second scheme, the employees discharging similar duties were offered a running pay scale of Rs. 420-700/-. On facts it was found that there was no difference in the nature of duties of the instructor and squad teachers. Both of them carried out similar work under the same employer and only on the ground that the instructors were part-time employees they could not be offered a fixed salary of Rs. 200/- per month. It becomes at once clear that there was no difference of educational qualifications amongst these twin sets of employees and the only ground on which difference of payment could be justified by the State was that they were employed under a different scheme and were working part-time only for four hours. On these peculiar facts of the case, therefore, it was held that instructors were entitled to same pay scale as sanctioned to squad teachers on the principle of Equal Pay or Equal Work. As the said decision also is rendered in the light of its peculiar facts it is not possible to agree with the learned counsel for the contesting respondents that the ratio of the said decision also gets squarely attracted to the facts of the present case. It is now time for us to take stock of thethe light of the well established facts on the record of these cases, to which we have made a reference earlier, it is impossible to hold that the Deputy Agricultural Officers like the contesting respondents are required to be given the same pay scale as Agriculturalview of these distinguishing features between the two groups of employees and especially in the light of the further fact that they form two separate cadres of gazetted and non-gazetted officers governed by different sets of service rules which in turn required maintenance of separate seniority lists, and on which aspect also there was no dispute between the parties, it is not possible to agree with the contention of learned counsel for the contesting respondents that only on the doctrine of Equal Pay for Equal Work the pay scale available to gazetted employees like Agricultural Officers must of necessity be made available to non-gazetted employees like Deputy Agricultural Officers on the pain of Articles 14 and 16 of the Constitution of India. In our view the Tribunal had patently erred in applying the said doctrine to the facts of the present cases. The decision of the Tribunal amounts to giving equal treatment to totally distinct and unequal categories of employees. The common judgment of the Tribunal, therefore, cannot be sustained. | 1 | 5,307 | 739 | ### 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:
to the contesting respondents. Our attention was then invited by learned counsel for the respondents to a decision of this Court in the case of Jaipal and others v. State of Haryana and others, JT 1988(2) SC 528 : 1988 Supp. 1 SCR 411. In this decision another Division Bench of this Court speaking through K.N. Singh, J. had to consider two identical schemes floated by the State of Haryana with the object of imparting literacy (functional and awareness) to adult illiterates and to provide literacy to children keeping away from schools. Even though the petitioners were discharging the same type of duties as instructors they were being paid a fixed salary of Rs. 200/- per month while under the second scheme, the employees discharging similar duties were offered a running pay scale of Rs. 420-700/-. On facts it was found that there was no difference in the nature of duties of the instructor and squad teachers. Both of them carried out similar work under the same employer and only on the ground that the instructors were part-time employees they could not be offered a fixed salary of Rs. 200/- per month. It becomes at once clear that there was no difference of educational qualifications amongst these twin sets of employees and the only ground on which difference of payment could be justified by the State was that they were employed under a different scheme and were working part-time only for four hours. On these peculiar facts of the case, therefore, it was held that instructors were entitled to same pay scale as sanctioned to squad teachers on the principle of Equal Pay or Equal Work. As the said decision also is rendered in the light of its peculiar facts it is not possible to agree with the learned counsel for the contesting respondents that the ratio of the said decision also gets squarely attracted to the facts of the present case. It is now time for us to take stock of the situation. 18. Keeping in view the aforesaid settled legal position, therefore, it has to be seen whether the Deputy Agricultural Officers and the Agricultural Officers can be said to form an identical class of employees who must be given the same pay scales and denial of which can be said to offend Articles 14 and 16 of the Constitution of India. In the light of the well established facts on the record of these cases, to which we have made a reference earlier, it is impossible to hold that the Deputy Agricultural Officers like the contesting respondents are required to be given the same pay scale as Agricultural Officers. Reasons are obvious. They do not form a similar class of employees even though they may be substantially discharging the same type of duties and their place of work may be interchangeable. A glaring difference which results into making them fall in a distinct and separate category of employees deserves to be kept in view. In the first place the contesting respondents are recruited by promotion from the lower category of Assistant Agricultural Officers. On promotion as Deputy Agricultural Officers they remain non- gazetted employees in the subordinate service in the Tamil Nadu Agricultural Extension Subordinate Service while the Agricultural Officers are directly recruited to a gazetted service called Tamil Nadu Agricultural Extension Service. The contesting respondents are promoted departmentally while the Agricultural Officers are directly selected through Tamil Nadu Public Service Commission. The minimum educational qualification for being an Agricultural Officer (direct recruit) is B.Sc. (Agriculture) while for a promotee-Deputy Agricultural Officer the minimum educational qualification is SSLC with suitable diploma as laid down by the Rules. Though substantially they carry out the same type of work and duties, important assignments are exclusively entrusted to Agricultural Officers as seen from para 5 of the additional affidavit filed by Shri V. Srinivasan, Deputy Secretary to Government at page 193 of the paper book, as noted earlier. The special duties which can be entrusted only to Agricultural Officers are listed as under : "(a) draw samples of Insecticides(b) draw samples of fertilizers(c) draw seed samples(d) analyse the soil water samples(e) work in the Regional Research Station(f) work in the State Seed Farm(g) work in the Laboratories(h) do soil survey work(i) can be appointed in delta areas. 19. Of course learned counsel for the contesting respondents submitted that in certain circumstances even the task of drawing samples is also being entrusted to Deputy Agricultural Officers. That may be so. But the special quality of work which the directly recruited Agricultural Officers have to put in substantially differs from the quality of work which can be entrusted to Deputy Agricultural Officers like the contesting respondents. As noted earlier out of the total posts of Agricultural Officers under the Agriculture Department of the appellant-State only 1018 posts can be made available for Deputy Agricultural Officers on interchangeable basis. 1372 posts are exclusively meant to be manned by directly recruited Agricultural Officers. In view of these distinguishing features between the two groups of employees and especially in the light of the further fact that they form two separate cadres of gazetted and non-gazetted officers governed by different sets of service rules which in turn required maintenance of separate seniority lists, and on which aspect also there was no dispute between the parties, it is not possible to agree with the contention of learned counsel for the contesting respondents that only on the doctrine of Equal Pay for Equal Work the pay scale available to gazetted employees like Agricultural Officers must of necessity be made available to non-gazetted employees like Deputy Agricultural Officers on the pain of Articles 14 and 16 of the Constitution of India. In our view the Tribunal had patently erred in applying the said doctrine to the facts of the present cases. The decision of the Tribunal amounts to giving equal treatment to totally distinct and unequal categories of employees. The common judgment of the Tribunal, therefore, cannot be sustained.
### Response:
1
### Explanation:
17. It becomes at once clear that in that case this Court was not concerned with a situation wherein there was dissimilarity of educational qualifications among the concerned groups of employees who were not offered the same pay scale. On the contrary in para 12 of the Report it has been clearly observed that the petitioners before this Court possessed the same qualifications, namely, B.A., B.Ed. as were possessed by the employees in the regular cadre and some of the petitioners before this Court were having even higher degrees like M.A., M.Ed. Under these circumstances when the State failed to establish different types of duties being discharged by these employees parity of pay scales was ordered to be granted to the petitioners. However the fact situation in the present case is entirely different. Hence no assistance can be rendered by the aforesaid decision to the contesting respondents. Our attention was then invited by learned counsel for the respondents to a decision of this Court in the case of Jaipal and others v. State of Haryana and others, JT 1988(2) SC 528 : 1988 Supp. 1 SCR 411. In this decision another Division Bench of this Court speaking through K.N. Singh, J. had to consider two identical schemes floated by the State of Haryana with the object of imparting literacy (functional and awareness) to adult illiterates and to provide literacy to children keeping away from schools. Even though the petitioners were discharging the same type of duties as instructors they were being paid a fixed salary of Rs. 200/- per month while under the second scheme, the employees discharging similar duties were offered a running pay scale of Rs. 420-700/-. On facts it was found that there was no difference in the nature of duties of the instructor and squad teachers. Both of them carried out similar work under the same employer and only on the ground that the instructors were part-time employees they could not be offered a fixed salary of Rs. 200/- per month. It becomes at once clear that there was no difference of educational qualifications amongst these twin sets of employees and the only ground on which difference of payment could be justified by the State was that they were employed under a different scheme and were working part-time only for four hours. On these peculiar facts of the case, therefore, it was held that instructors were entitled to same pay scale as sanctioned to squad teachers on the principle of Equal Pay or Equal Work. As the said decision also is rendered in the light of its peculiar facts it is not possible to agree with the learned counsel for the contesting respondents that the ratio of the said decision also gets squarely attracted to the facts of the present case. It is now time for us to take stock of thethe light of the well established facts on the record of these cases, to which we have made a reference earlier, it is impossible to hold that the Deputy Agricultural Officers like the contesting respondents are required to be given the same pay scale as Agriculturalview of these distinguishing features between the two groups of employees and especially in the light of the further fact that they form two separate cadres of gazetted and non-gazetted officers governed by different sets of service rules which in turn required maintenance of separate seniority lists, and on which aspect also there was no dispute between the parties, it is not possible to agree with the contention of learned counsel for the contesting respondents that only on the doctrine of Equal Pay for Equal Work the pay scale available to gazetted employees like Agricultural Officers must of necessity be made available to non-gazetted employees like Deputy Agricultural Officers on the pain of Articles 14 and 16 of the Constitution of India. In our view the Tribunal had patently erred in applying the said doctrine to the facts of the present cases. The decision of the Tribunal amounts to giving equal treatment to totally distinct and unequal categories of employees. The common judgment of the Tribunal, therefore, cannot be sustained.
|
Ravi Chand Mangla Vs. Dimpal Solania and Ors | grounds:(i) That the Respondents have defaulted to pay rent and is now in arrears of rent for 60 months beginning from Kwar Bati 1 Sambat 2040 to Sawan Singh Sudhi 15 Sambat 2015;(ii) That Respondent No. 1 has sub-let the property in dispute to the Respondents No. 2 & 3;(iii) That Respondents have impaired the value and utility of the prosperity in dispute;(vi) That Respondents are nuisance to the neighborhood;(v) That the Respondents have changed the user of the property in dispute;3. The Rent Controller framed the following issues for consideration:1. "Whether the Respondent No. 1 is in arrears of rent if so its effect? OPP2. Whether the Respondent No. 1 has sub-let the demised premises to the Respondents No. 2 & 3 without the consent of the Petitioner? OPP3. Whether the Respondent has materially impaired the value and utility of the building in question? OPP4. Whether the Respondents are nuisance neighborhood if so its effect? OPP5. Whether the Respondents have changed the user of the demised premises without the consent of the Petitioners? OPP6. Whether the petition is bad for mis-joinder and non-joinder of necessary parties? OPR.7. Relief.4. The Rent Controller held issue No. 1 in favour of the Respondents by observing that the arrears of rent for three years between 01.09.1985 to 31.12.1988 were deposited in the Court. The Rent Controller observed that sub-letting of the property in dispute by the Respondents was not proved. Reliance was placed on the evidence of PW-4, Har Saroop, who admitted in his cross examination that the first Respondent was continuing to do business in the name of M/s. Solania Engineering Works. The Rent Controller was of the opinion that it cannot be said that Respondent No. 1 was in exclusive possession of the property in dispute. Likewise issues No. 3 and 4 pertaining to material alterations to the property and nuisance created by the Respondents in the activity of manufacturing of grills was rejected by the Rent Controller. While deciding issue No. 5, the Rent Controller perused the rent agreement and was convinced that the Respondents were given the property not only for the purpose of installing the saw mill but also for carrying out any other type of business. The contention raised by the Appellant that the saw mill for which purpose the property was let out was closed by the Respondents 4/5 years prior to the filing of the eviction petition and the work of manufacturing of grills was going on which amounts to change of user, was rejected by the Rent Controller. On the basis of the aforesaid, the Rent Controller dismissed the eviction petition. The Appellant did not question the conclusion of the Rent Controller on issues No. 1 and 4 in the appeal before the Appellate Authority. The Appellate Authority found no fault with the judgment of the Rent Controller on the other issues. On the issue of change of user, the Appellate Authority found that the Respondents had the liberty to run any other business activity apart from the saw mill as per the rent agreement. The High Court discussed the issues involved in the case carefully and held that there was neither sub-letting nor any impairment to the value and utility of the premises. The allegation of change of user was rejected by the High Court.5. It was submitted before this Court that the Appellant is a reputed doctor who is aged 96 years and the premises in question is about 2000 sq. feet which is part of a larger plot of land which the Appellant intends to use for construction of a hospital for charitable purpose. Looking at the laudable object, we adjourned the matter several times to enable the parties to settle the matter. In spite of our persuasion, the Respondents-tenants were not willing to accept monetary compensation for evicting the premises and re-locating to another site. The Respondents contend that they will lose their livelihood if they are evicted from the premises. Having no other alternative, we kept the matter for decision on merits.6. There are two submissions that are made on behalf of the Appellant. The first point relates to non-payment of outstanding rent. The counter affidavit filed on behalf of the Respondents was referred to submit that the arrears of rent from 01.04.1993 to 31.08.2009 was paid only on 24.09.2009 which would amount to non-payment of rent which is a ground for eviction. We are afraid that we cannot agree with the submission made on behalf of the Appellant. It is clear from the judgment of the Rent Controller that the arrears of rent were paid for three years prior to the filing of the eviction petition. It is also clear from the judgment of the First Appellate Court that the Appellant did not assail the findings of the Rent Controller on issue No. 1 pertaining to default in payment of rent. We cannot permit the Appellant to make submissions for payment of default of arrears of rent at this stage.7. The main point urged on behalf of the Appellant is that the premises which was let out for saw mill is now being utilized for the purpose of manufacturing of grills which amount to change of user. Submissions were made before us by both sides on the interpretation of terms of the rent agreement. On a perusal of the agreement, we are convinced that there is no restriction placed on the Respondents-tenant to run business only relating to the saw mill. The tenant was given the liberty to carry on any other business as well. In the absence of any negative covenant the user does not amount to user for the purpose other than for which the premises was leased.1 A premises taken on rent for sugarcane crushing was used for cloth business in which case the landlords contention that there was change of user was rejected2. We agree with the judgments of the Courts below which are in accordance with the law laid down by this Court. | 0[ds]We are afraid that we cannot agree with the submission made on behalf of the Appellant. It is clear from the judgment of the Rent Controller that the arrears of rent were paid for three years prior to the filing of the eviction petition. It is also clear from the judgment of the First Appellate Court that the Appellant did not assail the findings of the Rent Controller on issue No. 1 pertaining to default in payment of rent. We cannot permit the Appellant to make submissions for payment of default of arrears of rent at this stageSubmissions were made before us by both sides on the interpretation of terms of the rent agreement. On a perusal of the agreement, we are convinced that there is no restriction placed on the Respondents-tenant to run business only relating to the saw mill. The tenant was given the liberty to carry on any other business as well. In the absence of any negative covenant the user does not amount to user for the purpose other than for which the premises was leased.1 A premises taken on rent for sugarcane crushing was used for cloth business in which case the landlords contention that there was change of user was rejected2. We agree with the judgments of the Courts below which are in accordance with the law laid down by this Court. | 0 | 1,227 | 244 | ### 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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grounds:(i) That the Respondents have defaulted to pay rent and is now in arrears of rent for 60 months beginning from Kwar Bati 1 Sambat 2040 to Sawan Singh Sudhi 15 Sambat 2015;(ii) That Respondent No. 1 has sub-let the property in dispute to the Respondents No. 2 & 3;(iii) That Respondents have impaired the value and utility of the prosperity in dispute;(vi) That Respondents are nuisance to the neighborhood;(v) That the Respondents have changed the user of the property in dispute;3. The Rent Controller framed the following issues for consideration:1. "Whether the Respondent No. 1 is in arrears of rent if so its effect? OPP2. Whether the Respondent No. 1 has sub-let the demised premises to the Respondents No. 2 & 3 without the consent of the Petitioner? OPP3. Whether the Respondent has materially impaired the value and utility of the building in question? OPP4. Whether the Respondents are nuisance neighborhood if so its effect? OPP5. Whether the Respondents have changed the user of the demised premises without the consent of the Petitioners? OPP6. Whether the petition is bad for mis-joinder and non-joinder of necessary parties? OPR.7. Relief.4. The Rent Controller held issue No. 1 in favour of the Respondents by observing that the arrears of rent for three years between 01.09.1985 to 31.12.1988 were deposited in the Court. The Rent Controller observed that sub-letting of the property in dispute by the Respondents was not proved. Reliance was placed on the evidence of PW-4, Har Saroop, who admitted in his cross examination that the first Respondent was continuing to do business in the name of M/s. Solania Engineering Works. The Rent Controller was of the opinion that it cannot be said that Respondent No. 1 was in exclusive possession of the property in dispute. Likewise issues No. 3 and 4 pertaining to material alterations to the property and nuisance created by the Respondents in the activity of manufacturing of grills was rejected by the Rent Controller. While deciding issue No. 5, the Rent Controller perused the rent agreement and was convinced that the Respondents were given the property not only for the purpose of installing the saw mill but also for carrying out any other type of business. The contention raised by the Appellant that the saw mill for which purpose the property was let out was closed by the Respondents 4/5 years prior to the filing of the eviction petition and the work of manufacturing of grills was going on which amounts to change of user, was rejected by the Rent Controller. On the basis of the aforesaid, the Rent Controller dismissed the eviction petition. The Appellant did not question the conclusion of the Rent Controller on issues No. 1 and 4 in the appeal before the Appellate Authority. The Appellate Authority found no fault with the judgment of the Rent Controller on the other issues. On the issue of change of user, the Appellate Authority found that the Respondents had the liberty to run any other business activity apart from the saw mill as per the rent agreement. The High Court discussed the issues involved in the case carefully and held that there was neither sub-letting nor any impairment to the value and utility of the premises. The allegation of change of user was rejected by the High Court.5. It was submitted before this Court that the Appellant is a reputed doctor who is aged 96 years and the premises in question is about 2000 sq. feet which is part of a larger plot of land which the Appellant intends to use for construction of a hospital for charitable purpose. Looking at the laudable object, we adjourned the matter several times to enable the parties to settle the matter. In spite of our persuasion, the Respondents-tenants were not willing to accept monetary compensation for evicting the premises and re-locating to another site. The Respondents contend that they will lose their livelihood if they are evicted from the premises. Having no other alternative, we kept the matter for decision on merits.6. There are two submissions that are made on behalf of the Appellant. The first point relates to non-payment of outstanding rent. The counter affidavit filed on behalf of the Respondents was referred to submit that the arrears of rent from 01.04.1993 to 31.08.2009 was paid only on 24.09.2009 which would amount to non-payment of rent which is a ground for eviction. We are afraid that we cannot agree with the submission made on behalf of the Appellant. It is clear from the judgment of the Rent Controller that the arrears of rent were paid for three years prior to the filing of the eviction petition. It is also clear from the judgment of the First Appellate Court that the Appellant did not assail the findings of the Rent Controller on issue No. 1 pertaining to default in payment of rent. We cannot permit the Appellant to make submissions for payment of default of arrears of rent at this stage.7. The main point urged on behalf of the Appellant is that the premises which was let out for saw mill is now being utilized for the purpose of manufacturing of grills which amount to change of user. Submissions were made before us by both sides on the interpretation of terms of the rent agreement. On a perusal of the agreement, we are convinced that there is no restriction placed on the Respondents-tenant to run business only relating to the saw mill. The tenant was given the liberty to carry on any other business as well. In the absence of any negative covenant the user does not amount to user for the purpose other than for which the premises was leased.1 A premises taken on rent for sugarcane crushing was used for cloth business in which case the landlords contention that there was change of user was rejected2. We agree with the judgments of the Courts below which are in accordance with the law laid down by this Court.
### Response:
0
### Explanation:
We are afraid that we cannot agree with the submission made on behalf of the Appellant. It is clear from the judgment of the Rent Controller that the arrears of rent were paid for three years prior to the filing of the eviction petition. It is also clear from the judgment of the First Appellate Court that the Appellant did not assail the findings of the Rent Controller on issue No. 1 pertaining to default in payment of rent. We cannot permit the Appellant to make submissions for payment of default of arrears of rent at this stageSubmissions were made before us by both sides on the interpretation of terms of the rent agreement. On a perusal of the agreement, we are convinced that there is no restriction placed on the Respondents-tenant to run business only relating to the saw mill. The tenant was given the liberty to carry on any other business as well. In the absence of any negative covenant the user does not amount to user for the purpose other than for which the premises was leased.1 A premises taken on rent for sugarcane crushing was used for cloth business in which case the landlords contention that there was change of user was rejected2. We agree with the judgments of the Courts below which are in accordance with the law laid down by this Court.
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Purushotham Vs. State Of Karnataka | the aforesaid observations are a complete answer to all the submissions made by the learned counsel for the appellants. 14. This apart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexure ‘c’ appended to the writ petition has recorded the following facts : “In so far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as a “bank”. So far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked for “bank”. The aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titled “purpose for which earmarked”, Annexure-C specifies “bank”. It is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use as “bank” has never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connection therewith.” 15. Upon consideration of the submissions of the learned counsel for the parties, the High Court has concluded – “We are satisfied that civil amenity site no. 2, at the time of its allotment to respondent no.3 was expressly earmarked for use as “bank”. The aforesaid position has remained unaltered to this day. In terms of the mandate contained in Section 38-A of the Bangalore Development Authority Act, 19776 it could not have been leased, sold or otherwise, transferred for purpose other than the one “….for which such area is reserved”. Since the civil amenity site in question was earmarked/reserved for “bank”, we are satisfied that it could not have been allotted for use as a “petrol station”. 16. From the above, it is evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same. 19. | 0[ds]In our opinion, it is no longer necessary for us to consider the issues raised by the appellants on first principle, as the issue is no longer res integra. In the case of B.S. Muddappa (supra), this Court examined the entire issue wherein, it has been heldthe legislative intent of the Bangalore Development Authority (Amendment) Act, 1991 (hereinafter referred to aswhich came into force w.e.f. 16th January, 1991 is to prevent the diversion of the user of an area reserved for a public park or playground or civic amenity to anotherapart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexureappended to the writ petition has recorded the following factsso far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as aSo far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked forThe aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titledAnnexure-C specifiesIt is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use ashas never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connectionis evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same. | 0 | 4,183 | 1,043 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the aforesaid observations are a complete answer to all the submissions made by the learned counsel for the appellants. 14. This apart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexure ‘c’ appended to the writ petition has recorded the following facts : “In so far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as a “bank”. So far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked for “bank”. The aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titled “purpose for which earmarked”, Annexure-C specifies “bank”. It is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use as “bank” has never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connection therewith.” 15. Upon consideration of the submissions of the learned counsel for the parties, the High Court has concluded – “We are satisfied that civil amenity site no. 2, at the time of its allotment to respondent no.3 was expressly earmarked for use as “bank”. The aforesaid position has remained unaltered to this day. In terms of the mandate contained in Section 38-A of the Bangalore Development Authority Act, 19776 it could not have been leased, sold or otherwise, transferred for purpose other than the one “….for which such area is reserved”. Since the civil amenity site in question was earmarked/reserved for “bank”, we are satisfied that it could not have been allotted for use as a “petrol station”. 16. From the above, it is evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same. 19.
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In our opinion, it is no longer necessary for us to consider the issues raised by the appellants on first principle, as the issue is no longer res integra. In the case of B.S. Muddappa (supra), this Court examined the entire issue wherein, it has been heldthe legislative intent of the Bangalore Development Authority (Amendment) Act, 1991 (hereinafter referred to aswhich came into force w.e.f. 16th January, 1991 is to prevent the diversion of the user of an area reserved for a public park or playground or civic amenity to anotherapart on the interpretation of Section 38A(1) and (2), the inescapable conclusion is that under Section 38A (1), BDA would have the authority to lease, sell or otherwise transfer any area reserved for the purpose for which such area is reserved, and no other. This clearly means that the Government can pass on the responsibility to another concern, be it individual, company or corporation for the purposes of carrying on the activity for which the plot has been reserved as a civic amenity. It does not give a licence to the BDA to convert the area reserved for civic amenities for activities which do not fall within the definition of civic amenities. Sub-section (2) of Section 38 is an embargo that even such sale or disposal otherwise of an area reserved for public parks, playground would not be permitted to private parties. Though such spaces, playgrounds and parks can be transferred to public authorities, but their user would be limited to the purposes for which they are reserved under the scheme. In case, a disposition is made for a purpose other than the one for which it is reserved, the Act has declared that, it shall be null and void. In our opinion, Rule 3 of which the support is sought by the appellants can not be permitted to override the statutory provision contained in Section 38A(1) and (2). Even otherwise, the rule only reiterates the statutory provision in Section 38A(1) and (2). We also do not find any substance in the submission that the site was never allotted as a bank, and, therefore, it could be allotted as a petrol pump. The High Court upon perusal of the pleadings as well as annexureappended to the writ petition has recorded the following factsso far as the factual matrix is concerned, it is necessary to record that the site in question was originally earmarked as park/playground in 1984. This factual position stands acknowledged at the hands of the Bangalore Development Authority in paragraph 5 of its counter affidavit. Subsequently, three civic amenity sites came to be carved out, in the area earlier earmarked for park/play ground. The first of these is presently being used by the Bangalore Water supply and Sewerage Board. The second site, which is the one in question was earmarked for use as aSo far as the instant aspect of the matter is concerned, our attention has been invited to Annexure-C appended to the writ petition, wherein civic amenity site no.2 has been shown as earmarked forThe aforesaid Annexure-C came to be executed on 06.01.1996. Civil amenity site no.2 is indicted therein, as measuring 2195.35 sq. meters. In the column titledAnnexure-C specifiesIt is the contention of the petitioners that, civic amenity site no.2 which was earmarked exclusively for use ashas never undergone any change at the hands of the Bangalore Development Authority. Civic amenity site no. 3 is not relevant for the instant case, and as such we refrain, for reasons of brevity, from recording any details in connectionis evident that in fact, the site had been originally earmarked to be developed as a public park/playground in 1984. However, since the same has been converted to a residential area, respondents Nos. 4 to 14 have very fairly stated that it could not at this stage be restored to its original purpose without causing havoc in the lives of the residents. They have, therefore, not insisted that the site be restored to its original purpose.17. We also do not find any merit in the submission that the term civic amenities would permit BDA to change the reservation from one particular user to another without the necessary amendment in the development plan. This would be contrary to the law laid down by this Court in the case of B.S. Muddappa (supra).18. We also do not find any substance in the submissions that the High Court has wrongly distinguished the judgment of the earlier Division Bench of the High Court in Aicoboo Nagar Residents Welfare Association (supra). A perusal of the paragraph 10 of the aforesaid judgment clearly shows that in that case, the High Court considered the legality of allotment of civic amenity site no.3. There was, in fact, no change in the activity/purpose, as the site had not been reserved for any specific purpose. The other question was whether the lease in favour of the government company for opening of petrol and diesel outlet would fall within the definition of civic amenity. In the present case, it was not the case of the respondent nos. 4 to 14 that petrol pump is not a civic amenity, therefore, the site could not have been allotted to open a petrol pump. The grievance of the respondents (writ petitioners in the High Court) was that civic amenity site no.2 had been earmarked for a bank and could not be allotted for a petrol pump without making necessary amendment in the site. Therefore, the High Court has rightly distinguished the aforesaid judgment and not relied upon the same.
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Howrah Municipal Corpn Vs. Ganges Rope Co Ltd | none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the court. 37. The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word vest is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word vest has also acquired a meaning as "an absolute or indefeasible right" [See K.J. Aiyers Judicial Dictionary (A complete Law Lexicon), Thirteenth Edition]. The context in which respondent - company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent-company is that on the basis of Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is that the respondent-company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfillment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. 38. In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent - company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation. | 1[ds]28. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994 , from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application.This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, Building Rules, on the date of sanction, have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying.We do not find that there was any deliberate delay on the part of the Corporation. We have found that the stand of the Corporation, on the basis of Building Rules, cannot be held to be erroneous that for seeking three additional floors, the company was required to file fresh application for sanction with necessary particulars, documents, plans and enclosures. The company complied with the necessary requirements but thereafter, the Building Rules were amended and restrictions have been imposed on height of buildings on the GT Road. It cannot, therefore, be held that the action of the Corporation is malicious. The Building Rules were amended by the State and the Corporation can have no bona fide or mala fide hand in it. After the amended Building Rules were notified, the Corporation on relevant ground of limited resources for civic amenities in a congested city like Howrah, with the approval of Mayor-in-Council, could legally impose legitimate restrictions on the height of buildings, on specified wards, roads and localities. It is to be noted from the relevant resolution of the Corporation that restrictions with regard to the height of buildings are not imposed only on GT Road but there are several specified wards and areas in which such restrictions are applied. This Court cannot accept that such a legislative change and consequent resolution came to be passed and got approved only to frustrate the pending application of the company.35. We have examined the provisions of section 175 of the Act fixing ordinarily period of sixty days for granting or refusing sanction. We have also examined Rule 13 of the Building Rules which also prescribes a period of sixty days from the date of application for grant or refusal of sanction for construction. Neither the provisions of the Act nor the Rules, however, provide for deemed sanction or deemed refusal on the expiry of sixty days period. Therefore, without express sanction, no construction is permissible contrary to the provisions in Chapter XII of the Act and Rule 3 of the Building Rules which prohibit construction or erection of new building or addition or alteration to any existing building without obtaining sanction foris undeniable that after the amendment of the Building Rules and the Resolution passed by the Corporation thereunder restrictions imposed on heights of buildings on specified wards, roads and localities would apply to all pending applications for sanction. The question is whether any exception can be made to the case of the applicant seeking sanction who had approached the court and obtained consideration of its applications for sanction within a specified period. We have extracted above, the various orders passed by the High Court in writ petitions successively filed by the company in an effort to obtain early sanction for its additional construction of three floors on the buildings in its multi-storeyed complex already completed up to 4th floor. In none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the court.In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent - company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation. | 1 | 6,819 | 1,335 | ### 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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none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the court. 37. The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word vest is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word vest has also acquired a meaning as "an absolute or indefeasible right" [See K.J. Aiyers Judicial Dictionary (A complete Law Lexicon), Thirteenth Edition]. The context in which respondent - company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent-company is that on the basis of Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is that the respondent-company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfillment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. 38. In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent - company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation.
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necessary particulars, documents, plans and enclosures. The company complied with the necessary requirements but thereafter, the Building Rules were amended and restrictions have been imposed on height of buildings on the GT Road. It cannot, therefore, be held that the action of the Corporation is malicious. The Building Rules were amended by the State and the Corporation can have no bona fide or mala fide hand in it. After the amended Building Rules were notified, the Corporation on relevant ground of limited resources for civic amenities in a congested city like Howrah, with the approval of Mayor-in-Council, could legally impose legitimate restrictions on the height of buildings, on specified wards, roads and localities. It is to be noted from the relevant resolution of the Corporation that restrictions with regard to the height of buildings are not imposed only on GT Road but there are several specified wards and areas in which such restrictions are applied. This Court cannot accept that such a legislative change and consequent resolution came to be passed and got approved only to frustrate the pending application of the company.35. We have examined the provisions of section 175 of the Act fixing ordinarily period of sixty days for granting or refusing sanction. We have also examined Rule 13 of the Building Rules which also prescribes a period of sixty days from the date of application for grant or refusal of sanction for construction. Neither the provisions of the Act nor the Rules, however, provide for deemed sanction or deemed refusal on the expiry of sixty days period. Therefore, without express sanction, no construction is permissible contrary to the provisions in Chapter XII of the Act and Rule 3 of the Building Rules which prohibit construction or erection of new building or addition or alteration to any existing building without obtaining sanction foris undeniable that after the amendment of the Building Rules and the Resolution passed by the Corporation thereunder restrictions imposed on heights of buildings on specified wards, roads and localities would apply to all pending applications for sanction. The question is whether any exception can be made to the case of the applicant seeking sanction who had approached the court and obtained consideration of its applications for sanction within a specified period. We have extracted above, the various orders passed by the High Court in writ petitions successively filed by the company in an effort to obtain early sanction for its additional construction of three floors on the buildings in its multi-storeyed complex already completed up to 4th floor. In none of the orders of the High Court, there is a mandate issued to the Corporation to grant a sanction. What was directed by the High Court in the first order was merely a liberty or option to the company to seek sanction for additional three floors. In the subsequent order, an expectation was expressed for decision of the pending applications within a period of four weeks. There was, thus, in favour of the company an order of the High Court directing the Corporation to decide its pending applications for sanction within the allotted period but non-compliance thereof by the Corporation can not result in creation of any vested right in favour of the company to obtain sanction on the basis of the Building Rules as they stood on the date of making application for sanction and regardless of the amendment introduced to the Building Rules. Neither the provisions of the Act nor general law creates any vested right, as claimed by the applicant company for grant of sanction or for consideration of its application for grant of sanction on the then existing Building Rules as were applicable on the date of application. Conceding or accepting such a so-called vested right of seeking sanction on the basis of unamended Building Rules, as in force on the date of application for sanction, would militate against the very scheme of the Act contained in Chapter XII and the Building Rules which intend to regulate the building activities in a local area for general public interest and convenience. It may be that the Corporation did not adhere to the time limit fixed by the court for deciding the pending applications of the company but we have no manner of doubt that the Building Rules with prohibition or restrictions on construction activities as applicable on the date of grant or refusal of sanction would govern the subject matter and not the Building Rules as they existed on the date of application for sanction. No discrimination can be made between a party which had approached the court for consideration of its application for sanction and obtained orders for decision of its application within a specified time and other applicants whose applications are pending without any intervention or order of the court.In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent - company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon.39. For all the above reasons, in our opinion, the learned Single Judge was right in rejecting the prayer of the respondent company in public interest and the Division Bench of the High Court committed an error in directing grant of sanction for further construction above four floors to the respondent company in clear violation of the existing building rules and the resolution of the Corporation.
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Messrs South India Steel Rolling Mills, Madras Vs. Commissioner of Income Tax, Madras | made in that regard and he has invited our attention to sub-section (5A) of section 32 AB where in express provision has been made for withdrawal of the amount standing to the credit of the assessee in the investment Deposit Account before the expiry of the period o f five years from the date of deposit in the event of dissolution of a firm. The learned counsel has urged that since the provisions contained in Sections 33(1)(a) and 34(3)(a) do not make any provision regarding dissolution of a partnership firm and speak of the assessee only, it must be held that the expression "assessee" in these provisions means the partnership firm as it stood before dissolution and would not cover a newly constituted firm after the dissolution of the old firm.Having regard to the words "which is owned by the assessee and is wholly used for the purposes of the business carried on by him, " in Section 33(1)(a) it must be held that the benefit of development rebate is available only to the assessee which is owning the machinery or plant and is using it wholly for the purpose of the business carried on by him. Similarly in Section 34(3)(a) the words used are "to be utilised by the assessee during a period of eight years next following for t he purposes of the business of the undertaking". The grant of development rebate under Section 33(1) (a) is subject to the condition laid down in Section 34(3)(a) which means that assessee who has obtained the development rebate under Section 33(1)(a) must also be the assessee who should utilise the amount credited to the Reserve Account during the period of eight years next following for the purposes of the business of the undertaking for which the development rebate was given. in other words, the expression " by the assessee" in these provisions refer to the same assessee. The condition for grant of rebate under Section 33 read with Section 34(3)(a) would not b satisfied if the assessee who has availed the rebate ceases to exist before the expiry of the period of eight years. 10. The decisions on which reliance has been placed by Ms. Ramachandran have no direct bearing on the point in issue. In Malabar Fisheries Co.. (supra) this Court has const rued the expression "transfer" in the context of Section 34(3)(b) of the act . In the instant case, we are not concerned with transfer of machinery or plant by the appellant-assesse. Here the assessee firm had ceased to exist as a result of dissolution before the expiry of the period of eight years. In Commissioner of Income Tax V. J.H. Gotla (Supra) this Court, while considering the provisions of Section 16(1)(c) of the Income Tax Act, 1922, has observed t hat where the plain literary in terpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language so as to achieve that intention of the Legislature and produce a rational const ruction. We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellant - assessee could not avail the benefit of development rebate. 11. The other contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Section 155. 12. As regards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act. 13. | 0[ds]We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellantassessee could not avail the benefit of developmentother contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Sectionregards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act. | 0 | 3,191 | 517 | ### 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:
made in that regard and he has invited our attention to sub-section (5A) of section 32 AB where in express provision has been made for withdrawal of the amount standing to the credit of the assessee in the investment Deposit Account before the expiry of the period o f five years from the date of deposit in the event of dissolution of a firm. The learned counsel has urged that since the provisions contained in Sections 33(1)(a) and 34(3)(a) do not make any provision regarding dissolution of a partnership firm and speak of the assessee only, it must be held that the expression "assessee" in these provisions means the partnership firm as it stood before dissolution and would not cover a newly constituted firm after the dissolution of the old firm.Having regard to the words "which is owned by the assessee and is wholly used for the purposes of the business carried on by him, " in Section 33(1)(a) it must be held that the benefit of development rebate is available only to the assessee which is owning the machinery or plant and is using it wholly for the purpose of the business carried on by him. Similarly in Section 34(3)(a) the words used are "to be utilised by the assessee during a period of eight years next following for t he purposes of the business of the undertaking". The grant of development rebate under Section 33(1) (a) is subject to the condition laid down in Section 34(3)(a) which means that assessee who has obtained the development rebate under Section 33(1)(a) must also be the assessee who should utilise the amount credited to the Reserve Account during the period of eight years next following for the purposes of the business of the undertaking for which the development rebate was given. in other words, the expression " by the assessee" in these provisions refer to the same assessee. The condition for grant of rebate under Section 33 read with Section 34(3)(a) would not b satisfied if the assessee who has availed the rebate ceases to exist before the expiry of the period of eight years. 10. The decisions on which reliance has been placed by Ms. Ramachandran have no direct bearing on the point in issue. In Malabar Fisheries Co.. (supra) this Court has const rued the expression "transfer" in the context of Section 34(3)(b) of the act . In the instant case, we are not concerned with transfer of machinery or plant by the appellant-assesse. Here the assessee firm had ceased to exist as a result of dissolution before the expiry of the period of eight years. In Commissioner of Income Tax V. J.H. Gotla (Supra) this Court, while considering the provisions of Section 16(1)(c) of the Income Tax Act, 1922, has observed t hat where the plain literary in terpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language so as to achieve that intention of the Legislature and produce a rational const ruction. We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellant - assessee could not avail the benefit of development rebate. 11. The other contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Section 155. 12. As regards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act. 13.
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We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellantassessee could not avail the benefit of developmentother contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Sectionregards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act.
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INSOLVENCY AND BANKRUPTCY BOARD OF INDIA Vs. LALIT KUMAR JAIN & ORS | 1. The Insolvency and Bankruptcy Board of India has filed the above Transfer Petitions under Article 139 (A) read with Article 142 of the Constitution of India seeking transfer of the Writ Petitions filed before High Courts to this Court. 2. By a Notification dated 15.11.2019, the Ministry of Corporate Affairs, Government of India in exercise of its power conferred under Section 1(3) of the Insolvency and Bankruptcy Code, 2016 brought into force the following provisions of the Insolvency and Bankruptcy Code, 2016 insofar as they related to personal guarantors to corporate debtors with effect from 01.12.2019: - i. Clause (e) of Section 2; ii. Section 78 (except with regard to fresh start process) and Sections 79; iii. Sections 94 to 187 (both inclusive); iv. Clause (g) to Clause (i) of sub-section (2) of Section 239 v. Clause (m) to Clause (zc) of sub-section (2) of Section 239; vi. Clause (zn) to Clause (zs) of sub-section (2) of Section 240; and vii. Section 249. 3. Writ Petitions were filed in the High Court of Delhi and other High Courts challenging the Notification dated 15.11.2019 and the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtors) Rules, 2019. The Writ Petitioners also sought a declaration that Section 95, 96, 99, 100, 101 of the Insolvency and Bankruptcy Code, 2016 are unconstitutional in so far as they apply to personal guarantors of corporate debtors. The Writ Petitions filed in the Delhi High Court are scheduled to be heard finally on 10.11.2020. The Petitioner contended that several Writ Petitions have been filed in the other High Courts. The Petitioner requests for the transfer of the Writ Petitions from all the High Courts to this Court to avoid the confusion caused by possible divergence of opinions expressed by the High Courts. 4. Ms. Madhavi Divan, learned Additional Solicitor General appearing for the Petitioner submitted that in view of the importance of the matter, it is imminent that all the Writ Petitions are transferred to this Court for an early resolution of the dispute. The learned Additional Solicitor General submitted that different opinions by the High Courts before which the Writ Petitions are pending would lead to confusion. The learned Solicitor General supported the submissions of the learned Additional Solicitor General and urged that the dispute pertaining to the validity of the Notification dated 15.11.2019 needs to be decided expeditiously. According to learned Solicitor General, the best course would be to transfer the cases to this Court where the dispute can be finally resolved. 5. The learned counsel appearing for the RespondentsWrit Petitioners in the High Courts objected to the transfer of the Writ Petitions on the following grounds: - a) That the Writ Petitions in the Delhi High Court are ready for hearing as they are listed on 10.11.2020 for final disposal. Therefore, the Delhi High Court should be permitted to complete the hearing. b) If the High Courts decide the matter, this Court will have the benefit of their opinion on the subject matter of the dispute. c) That the Insolvency and Bankruptcy Board of India cannot maintain these Transfer Petitions. Transfer Petitions could have been filed by the Union of India. d) That transfer of the Writ Petitions from various High Courts to this Court would not hasten the process and lead to early disposal. On the other hand, the Writ Petitions will remain pending in this Court for a long period of time. 6. After hearing the submissions made by the parties, we are of the considered opinion that the Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019 and related issues have to be transferred to this Court. Transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law. | 1[ds]6. After hearing the submissions made by the parties, we are of the considered opinion that the Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019 and related issues have to be transferred to this Court. Transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law. | 1 | 782 | 118 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. The Insolvency and Bankruptcy Board of India has filed the above Transfer Petitions under Article 139 (A) read with Article 142 of the Constitution of India seeking transfer of the Writ Petitions filed before High Courts to this Court. 2. By a Notification dated 15.11.2019, the Ministry of Corporate Affairs, Government of India in exercise of its power conferred under Section 1(3) of the Insolvency and Bankruptcy Code, 2016 brought into force the following provisions of the Insolvency and Bankruptcy Code, 2016 insofar as they related to personal guarantors to corporate debtors with effect from 01.12.2019: - i. Clause (e) of Section 2; ii. Section 78 (except with regard to fresh start process) and Sections 79; iii. Sections 94 to 187 (both inclusive); iv. Clause (g) to Clause (i) of sub-section (2) of Section 239 v. Clause (m) to Clause (zc) of sub-section (2) of Section 239; vi. Clause (zn) to Clause (zs) of sub-section (2) of Section 240; and vii. Section 249. 3. Writ Petitions were filed in the High Court of Delhi and other High Courts challenging the Notification dated 15.11.2019 and the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtors) Rules, 2019. The Writ Petitioners also sought a declaration that Section 95, 96, 99, 100, 101 of the Insolvency and Bankruptcy Code, 2016 are unconstitutional in so far as they apply to personal guarantors of corporate debtors. The Writ Petitions filed in the Delhi High Court are scheduled to be heard finally on 10.11.2020. The Petitioner contended that several Writ Petitions have been filed in the other High Courts. The Petitioner requests for the transfer of the Writ Petitions from all the High Courts to this Court to avoid the confusion caused by possible divergence of opinions expressed by the High Courts. 4. Ms. Madhavi Divan, learned Additional Solicitor General appearing for the Petitioner submitted that in view of the importance of the matter, it is imminent that all the Writ Petitions are transferred to this Court for an early resolution of the dispute. The learned Additional Solicitor General submitted that different opinions by the High Courts before which the Writ Petitions are pending would lead to confusion. The learned Solicitor General supported the submissions of the learned Additional Solicitor General and urged that the dispute pertaining to the validity of the Notification dated 15.11.2019 needs to be decided expeditiously. According to learned Solicitor General, the best course would be to transfer the cases to this Court where the dispute can be finally resolved. 5. The learned counsel appearing for the RespondentsWrit Petitioners in the High Courts objected to the transfer of the Writ Petitions on the following grounds: - a) That the Writ Petitions in the Delhi High Court are ready for hearing as they are listed on 10.11.2020 for final disposal. Therefore, the Delhi High Court should be permitted to complete the hearing. b) If the High Courts decide the matter, this Court will have the benefit of their opinion on the subject matter of the dispute. c) That the Insolvency and Bankruptcy Board of India cannot maintain these Transfer Petitions. Transfer Petitions could have been filed by the Union of India. d) That transfer of the Writ Petitions from various High Courts to this Court would not hasten the process and lead to early disposal. On the other hand, the Writ Petitions will remain pending in this Court for a long period of time. 6. After hearing the submissions made by the parties, we are of the considered opinion that the Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019 and related issues have to be transferred to this Court. Transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law.
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1
### Explanation:
6. After hearing the submissions made by the parties, we are of the considered opinion that the Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019 and related issues have to be transferred to this Court. Transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law.
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M/S. Sait Nagjee Purushotham & Co. Ltd Vs. Vimalabai Prabhulal | an association which was an unregistered body known as Indian Cable Makers Association was inducted in the year 1969 as a tenant in the premises Room No.503, 5th Floor, Arun Chambers, Tardeo, Bombay by respondent No.2 under an agreement termed as leave and licence dated 23.9.1969 at a rental of Rs.1500/- per month out of which Rs.1000/- was towards the premises and rent of Rs.500/- per month was payable towards furniture and fixtures. The name of the appellant was changed from Indian Cable Makers Association into M/s. Electrical Cable Development Association. It was registered in the year 1972. In that context, the question arose whether M/s. Electrical Cable Development Association is the successor of the Indian Cable Makers Association and their Lordships after examining the memorandum of association and articles of the appellant- Company and after reviewing the matter found that it was not the same. It was observed that articles and the memorandum of association only provided that a member of Electrical Cable Development Association as of right be admitted subject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution was produced before the Court of the Electrical Cable Development Association to show that they were converting themselves into an incorporated body. Therefore, in that context, their Lordships held that the Electrical Cable Development Association is not the real successor of M/s. Indian Cable Makers Association and they are not the same. Therefore, on this question of fact their Lordships found that it was distinctly separate legal entity and not the successor of the unregistered firm and the decree of eviction was affirmed. 16. In the case of G. Sridharamurti vs. Hindustan petroleum Corporation Ltd. & Anr. reported in (1995) 6 SCC 605 , the provisions of the Karnataka Rent Control Act, 1961 came into consideration and in this case a distinction was made between voluntary formation of company and in-voluntary formation of the company. In-voluntary formation of company means if by virtue of a statute law, a company is taken over then in that case the successor company will not become a sub-tenant and in case, it is a voluntary formation of company then in that case necessary evidence will have to be led to show that for all purposes it is same. In this case, ESSO a private oil company was merged by virtue of Section 7 of the Esso (Acquisition of Undertakings in India) Act, 1974. On coming into force of this Act, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested in the Central Government and thereafter it became a Government company known as Hindustan Petroleum Corporation Limited. In that context, their Lordships held that the premises were occupied by Esso which has been acquired by the Central Government under the enactment of the Parliament and therefore it will not become a sub-tenant. 17. In the case of Janki Devi (Smt.) & Anr. vs. G.C.Jain reported in (1994) 5 SCC 337(II), the premises were let out for being used as a school under the name and style of Tagore School by a society registered under the Registration of Societies Act. The respondent - landlord sought to evict lessee on the ground of subletting in favour of the society. The appellant was the secretary of the society. But the school was run by different management. Their Lordships observed that the test to determine a sublease is whether original lessee has the right to include and exclude others. Once she is merely a secretary, this test is not answered. Therefore, their Lordships found that the premises were subleased. 18. In the case of Cox & Kings Ltd. & Anr. vs. Chander Malhotra (Smt.) reported in (1997) 2 SCC 687 , the premises in question was demised to Cox & Kings (Agents) Limited, a company incorporated under the United Kingdom Companies Act. On account of certain problems the company wound up and had assigned under agreement the leasehold interest in the demised premises to the Indian company which carried on the business in the tenanted premises without obtaining written consent of the landlord. This was challenged by the respondent on the ground that this amounted to subletting under the Delhi Rent Control Act. Their Lordships after examining the matter answered the question that since the foreign company was leased out to an Indian company that amounts to voluntary transfer and the Indian company became a sub-tenant without the consent of the landlord. Their Lordships answered the question against the tenant and held that this amounts to sub-leasing within the meaning of Section 14(1)(b) of the Delhi Rent Control Act. 19. On review of all these cases it clearly transpires that the appellant- tenant has failed to substantiate that the private limited company which was formed in the year 1948 carried the same partners on the Board of Directors as were there prior to 1948. 20. In view of the ratio laid down by this Court in the aforesaid decisions, various tests were laid down obtaining in the facts of each case. But the common ratio which runs in all these cases is that if there is voluntary transfer by the company to a newly incorporated company then in that case one has to plead and prove that all the members of the old firm continued in the new firm and it is essentially the same. The only exception which has been made is that the transfer of the old company to a new one is under the statute or law. Therefore, in the present case after verifying the records of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal. | 0[ds]4. First of all we shall take up the question of bona fide need of the landlords. So far as the partition of the property and the present premises coming to the share of the landlords are concerned, there is no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building have substantiated the allegation with regard to the bona fide need or not. We have gone through the findings of the trial court as well as that of the appellate authority and the High Court and after closely scrutinizing the same, we do not think that the finding recorded by appellate court and the High Court can be interfered by this Court on the ground of being perverse or without any basisWe fail to appreciate that when two sons are there and if they want to expand their business at Calicut then it cannot be said that the need is a sham one. It is not possible for the landlords and their sons to wait till the disposal of the case. They have to do something in life and they cannot wait till the appellant is evicted from the premises in question. It is common experience that landlord tenant disputes in our country take long time and one cannot wait indefinitely for resolution of such litigation. If they want to expand their business, then it cannot be said that the need is not bona fide. It is alleged that one of the sons of the landlords has settled in the U.S.A.. That does not detract from the fact that the other sons of landlords want to expand their business at Calicut. Indian economy is going global and it is not unlikely that prodigal sons can return back to mother land. He can always come back and start his business at Calicut. On this ground we cannot deny the eviction to the landlords9. So far as the finding of the first appellate court and that of the High Court with regard to the eviction of the tenant on the ground of sub-letting & material change in premises under Section 11(4)(I ) & (ii) is concerned, that has been held against the landlords and there is no cross-appeal before us. Therefore, we need not go into merits of the findings of the courts belowThe appellant did not lead any categorical evidence to show that the same firm which was there in 1918 was later on converted into a private limited company with the same Directors. Therefore, the evidence in the present case is totally lacking. We insisted learned counsel for the appellant to satisfy us that the old firm which was there prior to 1948, converted into a private limited company with the same directors but learned counsel for the appellant failed to satisfy us. In fact, this question seems to have not been seriously raised either before the trial court, or the appellate court or before the High Court. It was observed by the trial court with regard to the protection under Section 11(17) of the Act that in order to prove that the firm is continuing in the tenanted building from 1940, it is admitted by the tenant that prior to the formation of the tenant- company the business was conducted by the partnership firm. It is apparent from Ext.B-6 that the tenant company came into existence in 1948 and memorandum and article of association clearly shows that the company was incorporated on 6.2.1948. Therefore, it was held that it is a separate legal entity from the date of incorporation. It was held by the trial court that the tenant company could not claim any tenancy right of partnership because the newly constituted separate legal entity had come into existence on 6.2.1948. Therefore, it was observed by the trial court that the very important ingredient of Section 11(17) is lacking in this case. Similarly, the appellate court in paragraph 25 of its order also held that the tenant company has not produced any document to show that it was in possession of the building as such before 1940. In fact, the private limited company came into existence in 1948. Therefore, the first appellate court also affirmed the finding of the trial court. Likewise, the High Court affirmed the findings of the courts below and observed that both the Rent Control Court and the Appellate Authority rightly held that tenancy commenced only in the year 1948 and hence the tenant cannot claim the protection of Section 11(17) of the Act. In view of this concurrent finding by all the Courts below there was hardly any scope to pierce the corporate veilWe cannot consider the facts pleaded in another case with regard to the firm but in order to substantiate that the same firm was occupying the premises on 1.4.1940, the tenant has to lead specific evidence so as to claim protection under Section 11(17) of the Act in this suit. We have ourselves gone through the evidence adduced in this case to find out whether any evidence has been led by the tenant to show that the same partnership firm continued when it was converted into the private limited company registered under the Companies Act with the same Board of Directors. But we regret to say that there is none in this case. This is a civil suit and party has to plead and prove in this case. We cannot look into the facts appearing in other case pertaining to this case19. On review of all these cases it clearly transpires that the appellant- tenant has failed to substantiate that the private limited company which was formed in the year 1948 carried the same partners on the Board of Directors as were there prior to 194820. In view of the ratio laid down by this Court in the aforesaid decisions, various tests were laid down obtaining in the facts of each case. But the common ratio which runs in all these cases is that if there is voluntary transfer by the company to a newly incorporated company then in that case one has to plead and prove that all the members of the old firm continued in the new firm and it is essentially the same. The only exception which has been made is that the transfer of the old company to a new one is under the statute or law. Therefore, in the present case after verifying the records of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal. | 0 | 5,684 | 1,257 | ### 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:
an association which was an unregistered body known as Indian Cable Makers Association was inducted in the year 1969 as a tenant in the premises Room No.503, 5th Floor, Arun Chambers, Tardeo, Bombay by respondent No.2 under an agreement termed as leave and licence dated 23.9.1969 at a rental of Rs.1500/- per month out of which Rs.1000/- was towards the premises and rent of Rs.500/- per month was payable towards furniture and fixtures. The name of the appellant was changed from Indian Cable Makers Association into M/s. Electrical Cable Development Association. It was registered in the year 1972. In that context, the question arose whether M/s. Electrical Cable Development Association is the successor of the Indian Cable Makers Association and their Lordships after examining the memorandum of association and articles of the appellant- Company and after reviewing the matter found that it was not the same. It was observed that articles and the memorandum of association only provided that a member of Electrical Cable Development Association as of right be admitted subject to certain conditions. It does not say that all those members in the unregistered association become members of the association much less any resolution was produced before the Court of the Electrical Cable Development Association to show that they were converting themselves into an incorporated body. Therefore, in that context, their Lordships held that the Electrical Cable Development Association is not the real successor of M/s. Indian Cable Makers Association and they are not the same. Therefore, on this question of fact their Lordships found that it was distinctly separate legal entity and not the successor of the unregistered firm and the decree of eviction was affirmed. 16. In the case of G. Sridharamurti vs. Hindustan petroleum Corporation Ltd. & Anr. reported in (1995) 6 SCC 605 , the provisions of the Karnataka Rent Control Act, 1961 came into consideration and in this case a distinction was made between voluntary formation of company and in-voluntary formation of the company. In-voluntary formation of company means if by virtue of a statute law, a company is taken over then in that case the successor company will not become a sub-tenant and in case, it is a voluntary formation of company then in that case necessary evidence will have to be led to show that for all purposes it is same. In this case, ESSO a private oil company was merged by virtue of Section 7 of the Esso (Acquisition of Undertakings in India) Act, 1974. On coming into force of this Act, the pre-existing tenancy rights held by Esso Company with the appellant initially stood transferred and vested in the Central Government and thereafter it became a Government company known as Hindustan Petroleum Corporation Limited. In that context, their Lordships held that the premises were occupied by Esso which has been acquired by the Central Government under the enactment of the Parliament and therefore it will not become a sub-tenant. 17. In the case of Janki Devi (Smt.) & Anr. vs. G.C.Jain reported in (1994) 5 SCC 337(II), the premises were let out for being used as a school under the name and style of Tagore School by a society registered under the Registration of Societies Act. The respondent - landlord sought to evict lessee on the ground of subletting in favour of the society. The appellant was the secretary of the society. But the school was run by different management. Their Lordships observed that the test to determine a sublease is whether original lessee has the right to include and exclude others. Once she is merely a secretary, this test is not answered. Therefore, their Lordships found that the premises were subleased. 18. In the case of Cox & Kings Ltd. & Anr. vs. Chander Malhotra (Smt.) reported in (1997) 2 SCC 687 , the premises in question was demised to Cox & Kings (Agents) Limited, a company incorporated under the United Kingdom Companies Act. On account of certain problems the company wound up and had assigned under agreement the leasehold interest in the demised premises to the Indian company which carried on the business in the tenanted premises without obtaining written consent of the landlord. This was challenged by the respondent on the ground that this amounted to subletting under the Delhi Rent Control Act. Their Lordships after examining the matter answered the question that since the foreign company was leased out to an Indian company that amounts to voluntary transfer and the Indian company became a sub-tenant without the consent of the landlord. Their Lordships answered the question against the tenant and held that this amounts to sub-leasing within the meaning of Section 14(1)(b) of the Delhi Rent Control Act. 19. On review of all these cases it clearly transpires that the appellant- tenant has failed to substantiate that the private limited company which was formed in the year 1948 carried the same partners on the Board of Directors as were there prior to 1948. 20. In view of the ratio laid down by this Court in the aforesaid decisions, various tests were laid down obtaining in the facts of each case. But the common ratio which runs in all these cases is that if there is voluntary transfer by the company to a newly incorporated company then in that case one has to plead and prove that all the members of the old firm continued in the new firm and it is essentially the same. The only exception which has been made is that the transfer of the old company to a new one is under the statute or law. Therefore, in the present case after verifying the records of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal.
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when two sons are there and if they want to expand their business at Calicut then it cannot be said that the need is a sham one. It is not possible for the landlords and their sons to wait till the disposal of the case. They have to do something in life and they cannot wait till the appellant is evicted from the premises in question. It is common experience that landlord tenant disputes in our country take long time and one cannot wait indefinitely for resolution of such litigation. If they want to expand their business, then it cannot be said that the need is not bona fide. It is alleged that one of the sons of the landlords has settled in the U.S.A.. That does not detract from the fact that the other sons of landlords want to expand their business at Calicut. Indian economy is going global and it is not unlikely that prodigal sons can return back to mother land. He can always come back and start his business at Calicut. On this ground we cannot deny the eviction to the landlords9. So far as the finding of the first appellate court and that of the High Court with regard to the eviction of the tenant on the ground of sub-letting & material change in premises under Section 11(4)(I ) & (ii) is concerned, that has been held against the landlords and there is no cross-appeal before us. Therefore, we need not go into merits of the findings of the courts belowThe appellant did not lead any categorical evidence to show that the same firm which was there in 1918 was later on converted into a private limited company with the same Directors. Therefore, the evidence in the present case is totally lacking. We insisted learned counsel for the appellant to satisfy us that the old firm which was there prior to 1948, converted into a private limited company with the same directors but learned counsel for the appellant failed to satisfy us. In fact, this question seems to have not been seriously raised either before the trial court, or the appellate court or before the High Court. It was observed by the trial court with regard to the protection under Section 11(17) of the Act that in order to prove that the firm is continuing in the tenanted building from 1940, it is admitted by the tenant that prior to the formation of the tenant- company the business was conducted by the partnership firm. It is apparent from Ext.B-6 that the tenant company came into existence in 1948 and memorandum and article of association clearly shows that the company was incorporated on 6.2.1948. Therefore, it was held that it is a separate legal entity from the date of incorporation. It was held by the trial court that the tenant company could not claim any tenancy right of partnership because the newly constituted separate legal entity had come into existence on 6.2.1948. Therefore, it was observed by the trial court that the very important ingredient of Section 11(17) is lacking in this case. Similarly, the appellate court in paragraph 25 of its order also held that the tenant company has not produced any document to show that it was in possession of the building as such before 1940. In fact, the private limited company came into existence in 1948. Therefore, the first appellate court also affirmed the finding of the trial court. Likewise, the High Court affirmed the findings of the courts below and observed that both the Rent Control Court and the Appellate Authority rightly held that tenancy commenced only in the year 1948 and hence the tenant cannot claim the protection of Section 11(17) of the Act. In view of this concurrent finding by all the Courts below there was hardly any scope to pierce the corporate veilWe cannot consider the facts pleaded in another case with regard to the firm but in order to substantiate that the same firm was occupying the premises on 1.4.1940, the tenant has to lead specific evidence so as to claim protection under Section 11(17) of the Act in this suit. We have ourselves gone through the evidence adduced in this case to find out whether any evidence has been led by the tenant to show that the same partnership firm continued when it was converted into the private limited company registered under the Companies Act with the same Board of Directors. But we regret to say that there is none in this case. This is a civil suit and party has to plead and prove in this case. We cannot look into the facts appearing in other case pertaining to this case19. On review of all these cases it clearly transpires that the appellant- tenant has failed to substantiate that the private limited company which was formed in the year 1948 carried the same partners on the Board of Directors as were there prior to 194820. In view of the ratio laid down by this Court in the aforesaid decisions, various tests were laid down obtaining in the facts of each case. But the common ratio which runs in all these cases is that if there is voluntary transfer by the company to a newly incorporated company then in that case one has to plead and prove that all the members of the old firm continued in the new firm and it is essentially the same. The only exception which has been made is that the transfer of the old company to a new one is under the statute or law. Therefore, in the present case after verifying the records of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal.
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Land Acquisition Collector and Another Vs. Durga Pada Mukherjee and Others | real purpose of the acquisition, it is for the respondents to disclose, except for good reasons, the relevant material or information, to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards, rely on the doctrine of onus of proof and defect the course of justice. For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and abjure its duties."and on this finding accepted all the five Letters Patent Appeals.5. After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established. Not only had their attention been drawn to the dictum in Somawantis case (supra) but they had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power. It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing but dismissal.6. Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him. The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power.7. Mr. Balakrishnan, learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force. We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court. | 1[ds]5. After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established. Not only had their attention been drawn to the dictum in Somawantis case (supra) but they had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power. It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing butburden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the Highwe accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansolwithin the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High | 1 | 2,509 | 1,246 | ### Instruction:
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real purpose of the acquisition, it is for the respondents to disclose, except for good reasons, the relevant material or information, to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards, rely on the doctrine of onus of proof and defect the course of justice. For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and abjure its duties."and on this finding accepted all the five Letters Patent Appeals.5. After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established. Not only had their attention been drawn to the dictum in Somawantis case (supra) but they had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power. It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing but dismissal.6. Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him. The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power.7. Mr. Balakrishnan, learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force. We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court.
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had to be taken at its face value in so far as the purpose was concerned unless the exception was established. I t further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents. While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, S. K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power. He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in t hat behalf was on them. In this situation we do not see how the respondents could be given any relief whatsoever. The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power. On the other hand. if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word. On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing butburden, as he concedes, was squarely on the respondents to prove colourable exercise of power. In the face of the conclusive presumption which the Court has to raise under sub-section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true. the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State. If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansol Sub-Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the Highwe accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated. We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on th e respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged. Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area. On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution. That averment reads:"That the Asansolwithin the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz. The Indian Iron &Steel Co., Indian Aluminium Corporation and several collieries, etc., etc. It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries."This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise ofdo not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High
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Kaushalya Devi And Others Vs. Baijnath Sayal And Others | Privy Council in Jamna Bai v. Vasant Rao, 43 Ind App 99: (AIR 1916 PC 2). In that case two defendants of whom one was a minor compromised a suit pending against them, and in doing so entered into a bond by which they jointly agreed to pay a certain sum to the plaintiff at a future date. The leave of the court was not obtained on behalf of the minor as required by S. 462 of the Code of Civil Procedure, 1882, which was then in force. When a claim was made on the said bond it was held that the bond was not enforceable against the minor but it was enforceable for the full amount against the joint contractor. We do not see how this case assists the appellants. It appears that Jamna Bai who was the joint contractor on the bond advanced the plea that one of the two promisors can plead the minority and consequent immunity of the other as a bar to the promisees claim against him. This plea was rejected by the Privy Council, and that would show that the bond which was executed in pursuance of a compromise agreement was not treated as null and void but as being unenforceable against the minor alone. In that connection the Privy Council observed that the minors liability could not be enforced in view of the fact that the requirements of S. 462 of the Code had not been complied with,. Indeed, in the judgment an observation has been made that the Privy Council was not expressing any opinion as to whether the bond could be enforceable against a minor even if S. 462 had been complied with. Thus this decision is of no assistance to the appellants. Similarly, the decision of the Privy Council in Khiarajmal v. Daim, 32 Ind App 23 (PC), can also be of no help to the appellants, because in that case all that the Privy Council decided was that a court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it, or are properly represented on the record. In other words, if a minor is not properly represented on the record no order passed in the proceedings can bind him. We are unable to see how this proposition has any relevance to the point which we are called upon to decide in the present appeal. 9. If the preliminary decree passed in the present proceedings without complying with the provisions of O. 32, R. 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of S. 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 10. It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit. It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When S. 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably by limited to the points arising form proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court. | 0[ds]In our opinion this contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of O. 32, R. 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors interest requires that he should be given liberty to avoid it. No such consideration arised in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with O. 32, R. 7(1).The non-observance of the condition laid down by R. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all. The nonobservance of the said condition makes the agreement or decree only voidable at the instance of the minor. That, in our opinion, is the effect of the provision of O. 32, R. 7(1) and (2)It is on this last observation that Mr. Jha has naturally relied; but in our opinion, the observation in question does not purport to be a decision on the interpretation of O. 32 R. 7(2). The context shows that the said observation was made in support of the decision that the challenge to the validity of the arbitration and the award could not have been made under paragraph 15 (1) (c) and nothing more. We are not prepared to extend this observation to cases like the present where the point in dispute is in regard to the interpretation of O. 32,R. 7. It issignificant that while describing the award as a nullity the Privy Council has also added that it can be challenged in any appropriate proceeding which postulates the adoption of necessary proceeding to avoid the award. The point for consideration by the Privy Council was whether a proceeding under paragraph 15 (1) (c) was indicated or whether an appeal could be regarded as an appropriate proceeding; but it was assumed that a proceeding had to be adopted to challenge the award. The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 15 (1) (c). Since it could not be challenged under paragraph 15 (1) (c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal. It is unnecessary for us to examine the merits of the said decision in the present appeal. All that we are concerned to point out is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of O. 32, R. 7 (2). That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question. As we have already pointed out, the words used in O. 32, R. 7(2) are plain and unambiguous and they do not lend any support to the argument that non-compliance with O. 32, R. 7(1) would make the impugned decree a nullityThus this decision is of no assistance to the appellantsIt is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When S. 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably by limited to the points arising form proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court. | 0 | 3,660 | 1,176 | ### Instruction:
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Privy Council in Jamna Bai v. Vasant Rao, 43 Ind App 99: (AIR 1916 PC 2). In that case two defendants of whom one was a minor compromised a suit pending against them, and in doing so entered into a bond by which they jointly agreed to pay a certain sum to the plaintiff at a future date. The leave of the court was not obtained on behalf of the minor as required by S. 462 of the Code of Civil Procedure, 1882, which was then in force. When a claim was made on the said bond it was held that the bond was not enforceable against the minor but it was enforceable for the full amount against the joint contractor. We do not see how this case assists the appellants. It appears that Jamna Bai who was the joint contractor on the bond advanced the plea that one of the two promisors can plead the minority and consequent immunity of the other as a bar to the promisees claim against him. This plea was rejected by the Privy Council, and that would show that the bond which was executed in pursuance of a compromise agreement was not treated as null and void but as being unenforceable against the minor alone. In that connection the Privy Council observed that the minors liability could not be enforced in view of the fact that the requirements of S. 462 of the Code had not been complied with,. Indeed, in the judgment an observation has been made that the Privy Council was not expressing any opinion as to whether the bond could be enforceable against a minor even if S. 462 had been complied with. Thus this decision is of no assistance to the appellants. Similarly, the decision of the Privy Council in Khiarajmal v. Daim, 32 Ind App 23 (PC), can also be of no help to the appellants, because in that case all that the Privy Council decided was that a court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it, or are properly represented on the record. In other words, if a minor is not properly represented on the record no order passed in the proceedings can bind him. We are unable to see how this proposition has any relevance to the point which we are called upon to decide in the present appeal. 9. If the preliminary decree passed in the present proceedings without complying with the provisions of O. 32, R. 7(1) is not a nullity but is only voidable at the instance of the appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of S. 97 of the Code is urged against the appellants. Section 97 which has been added in the Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 10. It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit. It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When S. 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably by limited to the points arising form proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court.
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void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of O. 32, R. 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors interest requires that he should be given liberty to avoid it. No such consideration arised in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with O. 32, R. 7(1).The non-observance of the condition laid down by R. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all. The nonobservance of the said condition makes the agreement or decree only voidable at the instance of the minor. That, in our opinion, is the effect of the provision of O. 32, R. 7(1) and (2)It is on this last observation that Mr. Jha has naturally relied; but in our opinion, the observation in question does not purport to be a decision on the interpretation of O. 32 R. 7(2). The context shows that the said observation was made in support of the decision that the challenge to the validity of the arbitration and the award could not have been made under paragraph 15 (1) (c) and nothing more. We are not prepared to extend this observation to cases like the present where the point in dispute is in regard to the interpretation of O. 32,R. 7. It issignificant that while describing the award as a nullity the Privy Council has also added that it can be challenged in any appropriate proceeding which postulates the adoption of necessary proceeding to avoid the award. The point for consideration by the Privy Council was whether a proceeding under paragraph 15 (1) (c) was indicated or whether an appeal could be regarded as an appropriate proceeding; but it was assumed that a proceeding had to be adopted to challenge the award. The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 15 (1) (c). Since it could not be challenged under paragraph 15 (1) (c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal. It is unnecessary for us to examine the merits of the said decision in the present appeal. All that we are concerned to point out is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of O. 32, R. 7 (2). That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question. As we have already pointed out, the words used in O. 32, R. 7(2) are plain and unambiguous and they do not lend any support to the argument that non-compliance with O. 32, R. 7(1) would make the impugned decree a nullityThus this decision is of no assistance to the appellantsIt is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When S. 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably by limited to the points arising form proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits, because if the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court.
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D. Ramakrishnan Vs. Intelligence Officer, Narcotic Control Bureau | as it failed to take into consideration that all drugs being Schedule `G and `H drugs under the Drugs and Cosmetics Rules, 1945, export thereof would not attract the provisions of Rule 58 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short, "the Rules") framed by the Central Government in exercise of the powers conferred upon it by Section 9 read with Section 76 of the Act. Mr. Tulsi furthermore contended that use of the drugs for medicinal purposes is acknowledged in terms of the proviso appended to Section 8(c) of the Act. In any event, he would content, Rules 53 and 64 of the Rules being genus, Rule 58 would be subject to Rule 53.5. Mr. Mohan Jain, learned Additional Solicitor General appearing on behalf of the respondent, on the other hand, would contend that in terms of Rules 58 and 59 of the Rules, no export of any drug is permissible unless a permit is obtained for export thereof from the Competent Authority. It was urged that the minimum sentence for the offences committed for which the appellant has been charged being 10 years, this Court should not enlarge the appellant on bail. 6. The drugs in question are no doubt mentioned in Schedule `G and `H of the Drugs and Cosmetics Rules. 7. Section 2(xxiii) of the Act defines "psychotropic substance" to mean, any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. The drugs mentioned in the First Information Report ("FIR") find place at Serial Nos. 30, 56 and 64 of the Schedule appended to the Act. Chapter III of the Act provides for prohibition of certain operations. Clause (c) thereof mandates that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-state, export inter-state, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization. 8. Chapter VI of the Rules deals with import, export and transshipment of narcotic drugs and psychotropic substances. Rule 53 provides for general prohibition. Rule 58 provides that subject to rules 3 and 53A, no narcotic drugs, or psychotropic substances specified in the Schedule of the Act, shall be exported out of India without an export authorization in respect of the consignment issued by the issuing authority in Form No.5 appended to these therein. Rule 59 provides for issue of export authorization. Rule 63 provides for prohibition of import and export of consignments through a post office box, 9. In Rajesh Kumar Gupta (supra), this Court opined: "19. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and trans- shipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consumption or use of the psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67-A provides for special provisions for medical and scientific purposes.20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances." 10. Appellant and his co-accused are said to have got licenses under theDrugs and Cosmetics Act, 1940. They had got general permission forimport and export.11. Section 80 of the Act provides that the provisions of the Act or therules made thereunder are in addition to, and not in derogation of the Drugsand Cosmetics Act, 1940 or the rules made thereunder.Drugs and Cosmetics At, 1940 does not deal with exports. The provisions of Customs Act do. The licensees, therefore, were, thus, required to comply with the specific requirements of the Act and the Rules. It is not denied or disputed that the appellant neither applied for nor granted any authority to export by the Narcotic Commissioner or any other Officer who is authorized in this behalf.12. We, therefore, are of the opinion that the High Court is right in opining that the decision of this Court in Rajesh Kumar Gupta (supra) is not applicable to the facts of this case. | 0[ds]10. Appellant and his co-accused are said to have got licenses under theDrugs and Cosmetics Act, 1940. They had got general permission forimport and export.11. Section 80 of the Act provides that the provisions of the Act or therules made thereunder are in addition to, and not in derogation of the Drugsand Cosmetics Act, 1940 or the rules made thereunder.Drugs and Cosmetics At, 1940 does not deal with exports. The provisions of Customs Act do. The licensees, therefore, were, thus, required to comply with the specific requirements of the Act and the Rules. It is not denied or disputed that the appellant neither applied for nor granted any authority to export by the Narcotic Commissioner or any other Officer who is authorized in this behalf.12. We, therefore, are of the opinion that the High Court is right in opining that the decision of this Court in Rajesh Kumar Gupta (supra) is not applicable to the facts of this case. | 0 | 1,543 | 183 | ### Instruction:
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as it failed to take into consideration that all drugs being Schedule `G and `H drugs under the Drugs and Cosmetics Rules, 1945, export thereof would not attract the provisions of Rule 58 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short, "the Rules") framed by the Central Government in exercise of the powers conferred upon it by Section 9 read with Section 76 of the Act. Mr. Tulsi furthermore contended that use of the drugs for medicinal purposes is acknowledged in terms of the proviso appended to Section 8(c) of the Act. In any event, he would content, Rules 53 and 64 of the Rules being genus, Rule 58 would be subject to Rule 53.5. Mr. Mohan Jain, learned Additional Solicitor General appearing on behalf of the respondent, on the other hand, would contend that in terms of Rules 58 and 59 of the Rules, no export of any drug is permissible unless a permit is obtained for export thereof from the Competent Authority. It was urged that the minimum sentence for the offences committed for which the appellant has been charged being 10 years, this Court should not enlarge the appellant on bail. 6. The drugs in question are no doubt mentioned in Schedule `G and `H of the Drugs and Cosmetics Rules. 7. Section 2(xxiii) of the Act defines "psychotropic substance" to mean, any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. The drugs mentioned in the First Information Report ("FIR") find place at Serial Nos. 30, 56 and 64 of the Schedule appended to the Act. Chapter III of the Act provides for prohibition of certain operations. Clause (c) thereof mandates that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-state, export inter-state, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization. 8. Chapter VI of the Rules deals with import, export and transshipment of narcotic drugs and psychotropic substances. Rule 53 provides for general prohibition. Rule 58 provides that subject to rules 3 and 53A, no narcotic drugs, or psychotropic substances specified in the Schedule of the Act, shall be exported out of India without an export authorization in respect of the consignment issued by the issuing authority in Form No.5 appended to these therein. Rule 59 provides for issue of export authorization. Rule 63 provides for prohibition of import and export of consignments through a post office box, 9. In Rajesh Kumar Gupta (supra), this Court opined: "19. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and trans- shipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consumption or use of the psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67-A provides for special provisions for medical and scientific purposes.20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances." 10. Appellant and his co-accused are said to have got licenses under theDrugs and Cosmetics Act, 1940. They had got general permission forimport and export.11. Section 80 of the Act provides that the provisions of the Act or therules made thereunder are in addition to, and not in derogation of the Drugsand Cosmetics Act, 1940 or the rules made thereunder.Drugs and Cosmetics At, 1940 does not deal with exports. The provisions of Customs Act do. The licensees, therefore, were, thus, required to comply with the specific requirements of the Act and the Rules. It is not denied or disputed that the appellant neither applied for nor granted any authority to export by the Narcotic Commissioner or any other Officer who is authorized in this behalf.12. We, therefore, are of the opinion that the High Court is right in opining that the decision of this Court in Rajesh Kumar Gupta (supra) is not applicable to the facts of this case.
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10. Appellant and his co-accused are said to have got licenses under theDrugs and Cosmetics Act, 1940. They had got general permission forimport and export.11. Section 80 of the Act provides that the provisions of the Act or therules made thereunder are in addition to, and not in derogation of the Drugsand Cosmetics Act, 1940 or the rules made thereunder.Drugs and Cosmetics At, 1940 does not deal with exports. The provisions of Customs Act do. The licensees, therefore, were, thus, required to comply with the specific requirements of the Act and the Rules. It is not denied or disputed that the appellant neither applied for nor granted any authority to export by the Narcotic Commissioner or any other Officer who is authorized in this behalf.12. We, therefore, are of the opinion that the High Court is right in opining that the decision of this Court in Rajesh Kumar Gupta (supra) is not applicable to the facts of this case.
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Kailash Upendra Giri & Another Vs. State of Maharashtra | states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/- in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/- was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/- was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him. | 1[ds]8.As regards the first circumstance of Kailash being an earlier servant in the house and being familiar with the house as well as its occupants, we have the evidence of P.W.9 Dr. Kalpana Vaidya. She states in her evidence that Kailash was working in the house of her mother for 6 to 7 months. That whenever she used to visit the house of her mother she used to see Kailash in the house. That her mother had once told her that Kailash had got another job and that he had brought Purshottam as a substitute but Kailash was also visiting the house and watching television. This evidence conclusively proves the circumstance about Kailash being familiar with the house of Dr. Wagh and its occupants.9.As regards the second circumstance i.e. recovery of Rs.6000/in cash and one silver chain, the prosecution had led the evidence of P.W.No.8 P.S.I. Nandkumar Ghorpade who talks about the said recovery. In addition, the prosecution has also examined P.W.5 Surendra Choudhary who was the panch in respect of the recovery panchanama. The Advocate appearing for accused No.1 pointed out some discrepancies in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary. According to him, while P.S.I. Nandkumar Ghorpade had talked about the recovery of a silver chain from the neck of Kailash the panch witness had not talked about recovery of the silver chain from the neck of the accused. There is hardly any substance in his argument. P.W.9 Kalpana Vaidya in her evidence has identified the silver chain recovered (Part ofas the chain belonging to her father. In so far as recovery of an amount of Rs.6000/Kalpana stated that she had seen her mother writing names of the doctor on the currency notes received and she also identified the handwriting of her mother on one currency note ( Part of Article 8 before the court). This circumstance of recovery is therefore clearly established as against the accused Kailash. In his statement under Section 313 of the Criminal Procedure Code, Kailash has given no explanation about the finding of Rs.6000/and silver chain and has confined himself merely to denying the recovery. This circumstance is also duly proved by the prosecution against Kailash.10.The next circumstance relating to finger prints of Kailash is proved by the prosecution by examining P.W.No.22 Mr.Amol Nominath Athanikar who was photographer working in the office of the Commissioner of Police Mumbai. This witness deposed that from the scene of offence photographed two finger prints on the glass and two finger prints on the steel pot. He thereafter prepared enlarged photographs and delivered the negatives and positives to the police. The prosecution then further examined P.W.19 Chandrakant Ghag who was the panch witness for the panchanama relating to the lifting of the finger prints at the scene of offence and this witness formally proved the panchanama. The prosecution then finally examinedPalav who was the Finger print expert and this witness in his evidence stated that he found the finger prints on the steel pot at the scene of the offence. He spread mercury and chalk which is known as white powder and lifted those prints. That on 26.6.1996 Dadar Police Station took various finger prints of the suspected accused persons by name Kailash, Bhupendra, Sridhar and Damodar. He had stated that upon examination he found that the finger prints of the accused Kailash were similar to the finger prints which he had collected from the steel utensil. As per the office procedure he circulated this finding toprint experts and 12 experts scrutinized his report and confirmed his finding. Out of these 13 experts, 8 were Senior experts and others were Junior experts. There is virtually no cross examination of this witness and therefore, his evidence is totally acceptable.11.The next circumstance is that Kailash was present and seen in Mumbai on the date of the incident and immediately absconded and ran away to his native place is proved by the prosecution through the evidence of P.W.3 Sunil Bachanuprasad Verma. This witness states that he was working alongwith accused No.3 Damodar Sahu in Jalan and Company. He states that on 3.5.1996 Damodar came to collect some articles like stove, utensils and cooker from his room. When he and Damodar came out of the office of his company, he saw one Kailash was sitting outside . He identified Kailash in the court and stated that Damodar told him that within 2 to 4 days they will be going to Calcutta and thereafter, Damodar and Kailash went back. The evidence of this witness is corroborated by the fact that this witness had identified Kailash in an identification parade which was held by the Special Executive Magistrate. A further fact that Kailash was found missing and had ran away to his village is corroborated by the recovery evidence which indicates that on 7.5.1996 Kailash was actually found in his village. This circumstance is also proved by the prosecution.12.The last circumstances against Kailash is the fact that he went to a key maker to prepare the duplicate keys of the flat of Dr. Wagh. This circumstance is proved by the prosecution by the evidence of P.W.14 Anand Katappa. This witness states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him. | 1 | 4,476 | 1,981 | ### Instruction:
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states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/- in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/- was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/- was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him.
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Katappa. This witness states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him.
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Union Of India Vs. Reliance Industries Limited | SCC 603 , and a recent judgment in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. & Anr., (decided on 10th March, 2015 in Civil Appeal No. 610 of 2015)]. 18. In fact, in Harmony’s case, this Court, after setting out all the aforesaid judgments, set out the arbitration clause in that case in paragraph 32 as follows: “In view of the aforesaid propositions laid down by this Court, we are required to scan the tenor of the clauses in the agreement specifically, the arbitration clause in appropriate perspective. The said clause read as follows:“5. If any dispute or difference should arise under this charter, general average/arbitration in London to apply, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision or that of any two of them, shall be final and binding, and this agreement may, for enforcing the same, be made a rule of Court. Said three parties to be commercial men who are the members of the London Arbitrators Association. This contract is to be governed and construed according to English Law.For disputes where total amount claim by either party does not exceed USD 50,000 the arbitration should be conducted in accordance with small claims procedure of the Page 33 33 London Maritime Arbitration Association.” [at para 32] It then held: “Coming to the stipulations in the present arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of London Arbitration Association; the contract is to be construed and governed by English Law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in the agreement that any other law would govern the arbitration clause.” [at para 41]“Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.” [at paras 46 and 47] 19. It is interesting to note that even though the law governing the arbitration agreement was not specified, yet this Court held, having regard to various circumstances, that the seat of arbitration would be London and therefore, by necessary implication, the ratio of Bhatia International would not apply.20. The last paragraph of Bharat Aluminium’s judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself – that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.21. On the facts in the present case, it is clear that this Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable. A Section 14 application made under Part-I would consequently not be maintainable. It needs to be mentioned that Shri Ranjit Kumar’s valiant attempt to reopen a question settled twice over, that is by dismissal of both a review petition and a curative petition on the very ground urged before us, must meet with the same fate. His argument citing the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 , that res judicata would not attach to questions relating to jurisdiction, would not apply in the present case as the effect of clause 34.2 of the PSC raises at best a mixed question of fact and law and not a pure question of jurisdiction unrelated to facts. Therefore, both on grounds of res judicata as well as the law laid down in the judgment dated 28.5.2014, this application under Section 14 deserves to be dismissed. It is also an abuse of the process of the Court as has rightly been argued by Dr. Singhvi. It is only after moving under the UNCITRAL Arbitration Rules and getting an adverse judgment from the Permanent Court of Arbitration dated 10.06.2013 that the present application was filed under Section 14 of the Arbitration Act two days later i.e. on 12.6.2013. Viewed | 1[ds]16. It will thus be seen that facts like the present case attract the Bhatia International principle of concurrent jurisdiction inasmuch as all arbitration agreements entered into before 12.9.2012, that is the date of pronouncement of Bharat Aluminiumjudgment, will be governed by Bhatia International.17. It is important to note that in paragraph 32 of Bhatia International itself this Court has held that Part-I of the Arbitration Act, 1996 will not apply if it has been excluded either expressly or by necessary implication. Several judgments of this Court have held that Part-I is excluded by necessary implication if it is found that on the facts of a case either the juridical seat of the arbitration is outside India or the law governing the arbitration agreement is a law other than Indian law. This is now well settled by a series of decisions of this Court [see: Videocon Industries Ltd. v. Union of India & Anr., (2011) 6 SCC 161 , Dozco India Private Limited v. Doosan Infracore Company Limited, (2011) 6 SCC 179 , Yograj Infrastructure Limited v. Ssang Yong Engineering and Construction Company Limited, (2011) 9 SCC 735 ), the very judgment in this case reported in Reliance Industries Limited v. Union of India, (2014) 7 SCC 603 , and a recent judgment in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. & Anr., (decided on 10th March, 2015 in Civil Appeal No. 610 ofsaid that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived[at paras 46 andIt is interesting to note that even though the law governing the arbitration agreement was not specified, yet this Court held, having regard to various circumstances, that the seat of arbitration would be London and therefore, by necessary implication, the ratio of Bhatia International would not apply.20. The last paragraph of Bharatjudgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself – that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.21. On the facts in the present case, it is clear that this Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable. A Section 14 application made under Part-I would consequently not be maintainable. It needs to be mentioned that Shri Ranjitvaliant attempt to reopen a question settled twice over, that is by dismissal of both a review petition and a curative petition on the very ground urged before us, must meet with the same fate. His argument citing the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 , that res judicata would not attach to questions relating to jurisdiction, would not apply in the present case as the effect of clause 34.2 of the PSC raises at best a mixed question of fact and law and not a pure question of jurisdiction unrelated to facts. Therefore, both on grounds of res judicata as well as the law laid down in the judgment dated 28.5.2014, this application under Section 14 deserves to be dismissed. It is also an abuse of the process of the Court as has rightly been argued by Dr. Singhvi. It is only after moving under the UNCITRAL Arbitration Rules and getting an adverse judgment from the Permanent Court of Arbitration dated 10.06.2013 that the present application was filed under Section 14 of the Arbitration Act two days later i.e. on 12.6.2013. | 1 | 5,883 | 840 | ### 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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SCC 603 , and a recent judgment in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. & Anr., (decided on 10th March, 2015 in Civil Appeal No. 610 of 2015)]. 18. In fact, in Harmony’s case, this Court, after setting out all the aforesaid judgments, set out the arbitration clause in that case in paragraph 32 as follows: “In view of the aforesaid propositions laid down by this Court, we are required to scan the tenor of the clauses in the agreement specifically, the arbitration clause in appropriate perspective. The said clause read as follows:“5. If any dispute or difference should arise under this charter, general average/arbitration in London to apply, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision or that of any two of them, shall be final and binding, and this agreement may, for enforcing the same, be made a rule of Court. Said three parties to be commercial men who are the members of the London Arbitrators Association. This contract is to be governed and construed according to English Law.For disputes where total amount claim by either party does not exceed USD 50,000 the arbitration should be conducted in accordance with small claims procedure of the Page 33 33 London Maritime Arbitration Association.” [at para 32] It then held: “Coming to the stipulations in the present arbitration clause, it is clear as day that if any dispute or difference would arise under the charter, arbitration in London to apply; that the arbitrators are to be commercial men who are members of London Arbitration Association; the contract is to be construed and governed by English Law; and that the arbitration should be conducted, if the claim is for a lesser sum, in accordance with small claims procedure of the London Maritime Arbitration Association. There is no other provision in the agreement that any other law would govern the arbitration clause.” [at para 41]“Thus, interpreting the clause in question on the bedrock of the aforesaid principles it is vivid that the intended effect is to have the seat of arbitration at London. The commercial background, the context of the contract and the circumstances of the parties and in the background in which the contract was entered into, irresistibly lead in that direction. We are not impressed by the submission that by such interpretation it will put the respondent in an advantageous position. Therefore, we think it would be appropriate to interpret the clause that it is a proper clause or substantial clause and not a curial or a procedural one by which the arbitration proceedings are to be conducted and hence, we are disposed to think that the seat of arbitration will be at London.Having said that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived at.” [at paras 46 and 47] 19. It is interesting to note that even though the law governing the arbitration agreement was not specified, yet this Court held, having regard to various circumstances, that the seat of arbitration would be London and therefore, by necessary implication, the ratio of Bhatia International would not apply.20. The last paragraph of Bharat Aluminium’s judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself – that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.21. On the facts in the present case, it is clear that this Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable. A Section 14 application made under Part-I would consequently not be maintainable. It needs to be mentioned that Shri Ranjit Kumar’s valiant attempt to reopen a question settled twice over, that is by dismissal of both a review petition and a curative petition on the very ground urged before us, must meet with the same fate. His argument citing the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 , that res judicata would not attach to questions relating to jurisdiction, would not apply in the present case as the effect of clause 34.2 of the PSC raises at best a mixed question of fact and law and not a pure question of jurisdiction unrelated to facts. Therefore, both on grounds of res judicata as well as the law laid down in the judgment dated 28.5.2014, this application under Section 14 deserves to be dismissed. It is also an abuse of the process of the Court as has rightly been argued by Dr. Singhvi. It is only after moving under the UNCITRAL Arbitration Rules and getting an adverse judgment from the Permanent Court of Arbitration dated 10.06.2013 that the present application was filed under Section 14 of the Arbitration Act two days later i.e. on 12.6.2013. Viewed
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16. It will thus be seen that facts like the present case attract the Bhatia International principle of concurrent jurisdiction inasmuch as all arbitration agreements entered into before 12.9.2012, that is the date of pronouncement of Bharat Aluminiumjudgment, will be governed by Bhatia International.17. It is important to note that in paragraph 32 of Bhatia International itself this Court has held that Part-I of the Arbitration Act, 1996 will not apply if it has been excluded either expressly or by necessary implication. Several judgments of this Court have held that Part-I is excluded by necessary implication if it is found that on the facts of a case either the juridical seat of the arbitration is outside India or the law governing the arbitration agreement is a law other than Indian law. This is now well settled by a series of decisions of this Court [see: Videocon Industries Ltd. v. Union of India & Anr., (2011) 6 SCC 161 , Dozco India Private Limited v. Doosan Infracore Company Limited, (2011) 6 SCC 179 , Yograj Infrastructure Limited v. Ssang Yong Engineering and Construction Company Limited, (2011) 9 SCC 735 ), the very judgment in this case reported in Reliance Industries Limited v. Union of India, (2014) 7 SCC 603 , and a recent judgment in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. & Anr., (decided on 10th March, 2015 in Civil Appeal No. 610 ofsaid that the implied exclusion principle stated in Bhatia International (supra) would be applicable, regard being had to the clause in the agreement, there is no need to dwell upon the contention raised pertaining to the addendum, for any interpretation placed on the said document would not make any difference to the ultimate conclusion that we have already arrived[at paras 46 andIt is interesting to note that even though the law governing the arbitration agreement was not specified, yet this Court held, having regard to various circumstances, that the seat of arbitration would be London and therefore, by necessary implication, the ratio of Bhatia International would not apply.20. The last paragraph of Bharatjudgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself – that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.21. On the facts in the present case, it is clear that this Court has already determined both that the juridical seat of the arbitration is at London and that the arbitration agreement is governed by English law. This being the case, it is not open to the Union of India to argue that Part-I of the Arbitration Act, 1996 would be applicable. A Section 14 application made under Part-I would consequently not be maintainable. It needs to be mentioned that Shri Ranjitvaliant attempt to reopen a question settled twice over, that is by dismissal of both a review petition and a curative petition on the very ground urged before us, must meet with the same fate. His argument citing the case of Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613 , that res judicata would not attach to questions relating to jurisdiction, would not apply in the present case as the effect of clause 34.2 of the PSC raises at best a mixed question of fact and law and not a pure question of jurisdiction unrelated to facts. Therefore, both on grounds of res judicata as well as the law laid down in the judgment dated 28.5.2014, this application under Section 14 deserves to be dismissed. It is also an abuse of the process of the Court as has rightly been argued by Dr. Singhvi. It is only after moving under the UNCITRAL Arbitration Rules and getting an adverse judgment from the Permanent Court of Arbitration dated 10.06.2013 that the present application was filed under Section 14 of the Arbitration Act two days later i.e. on 12.6.2013.
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M/S. Indian Oil Corporation Vs. M/S. Nepc India Ltd. | and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract." 27. In Rajesh Bajaj (supra), this Court held: "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities." 28. In Hridaya Ranjan Prasad Verma (supra), this Court held: "On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 29. In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud the IOC, had induced IOC to resume supply of aircraft fuel on cash and carry basis, by entering into a further agreement dated 20.9.1997 and undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the Hypothecation Agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs.18 crores, entered into a fresh agreement dated 20.9.1997 agreeing to clear the outstanding as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20.9.1997 were on cash and carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage. Section 425 30. Section 425 IPC provides: "Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". The three ingredients of the Section are:(i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person;(ii) causing destruction of some property or any change in the property or in the situation thereof; and(iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of section 425, ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to section 425.The complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of mischief. Here again, we are not concerned with the proof or ultimate decision." | 1[ds]Re: Point No.Coming to the facts of this case, it is no doubt true that IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due. It has filed C.S. No.425/1997 in the Madras High Court and O.S. No.3327/1998 in the City Civil Court, Chennai seeking injunctive reliefs to restrain the NEPC India from removing its aircrafts so that it can exercise its right to possess the Aircrafts. It has also filed two more suits for recovery of the amounts due to it for the supplies made, that is CS No.998/1999 against NEPC India (for recovery of Rs.5,28,23,501/90) and CS No.11/2000 against Skyline (for recovery of Rs.13,12,76,421/25), in the Madras High Court. IOC has also initiated proceedings for winding up NEPC India and filed a petition seeking initiation of proceedings for contempt for alleged disobedience of the orders of temporary injunction. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But it does not follow there from that criminal law remedy is barred or IOC is estopped from seeking such remedy.12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted to another Aircraft (VT-NEH) which had been taken on lease from M/s Aircraft Financing and Trading BV and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines), when sent for overhauling to M/s Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.13. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil6. The High Court has held that mere breach of a contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no cheating. The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to section 415 makes this positionA intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.""(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud the IOC, had induced IOC to resume supply of aircraft fuel on cash and carry basis, by entering into a further agreement dated 20.9.1997 and undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the Hypothecation Agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs.18 crores, entered into a fresh agreement dated 20.9.1997 agreeing to clear the outstanding as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20.9.1997 were on cash and carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage.Section 425 IPCwith intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". The three ingredients of the Section are:(i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person;(ii) causing destruction of some property or any change in the property or in the situation thereof; and(iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of section 425, ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to section 425.The complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of mischief. Here again, we are not concerned with the proof or ultimate | 1 | 8,224 | 1,282 | ### 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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and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract." 27. In Rajesh Bajaj (supra), this Court held: "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities." 28. In Hridaya Ranjan Prasad Verma (supra), this Court held: "On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 29. In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud the IOC, had induced IOC to resume supply of aircraft fuel on cash and carry basis, by entering into a further agreement dated 20.9.1997 and undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the Hypothecation Agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs.18 crores, entered into a fresh agreement dated 20.9.1997 agreeing to clear the outstanding as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20.9.1997 were on cash and carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage. Section 425 30. Section 425 IPC provides: "Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". The three ingredients of the Section are:(i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person;(ii) causing destruction of some property or any change in the property or in the situation thereof; and(iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of section 425, ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to section 425.The complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of mischief. Here again, we are not concerned with the proof or ultimate decision."
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are available in law and IOC has taken recourse to such remedies. But it does not follow there from that criminal law remedy is barred or IOC is estopped from seeking such remedy.12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted to another Aircraft (VT-NEH) which had been taken on lease from M/s Aircraft Financing and Trading BV and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines), when sent for overhauling to M/s Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.13. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil6. The High Court has held that mere breach of a contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no cheating. The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to section 415 makes this positionA intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.""(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud the IOC, had induced IOC to resume supply of aircraft fuel on cash and carry basis, by entering into a further agreement dated 20.9.1997 and undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the Hypothecation Agreements. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs.18 crores, entered into a fresh agreement dated 20.9.1997 agreeing to clear the outstanding as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20.9.1997 were on cash and carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within section 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage.Section 425 IPCwith intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". The three ingredients of the Section are:(i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person;(ii) causing destruction of some property or any change in the property or in the situation thereof; and(iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of section 425, ownership or possession of the property are not relevant. Even if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to section 425.The complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft. The allegations clearly constitute the offence of mischief. Here again, we are not concerned with the proof or ultimate
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Election Commission Of India Vs. St. Mary'S School | State is to provide for free and compulsory education for children until they complete the age of 14 years. The Constitution has been amended keeping in view the aforementioned provisions as also the decision of this Court in Unni Krishnan (supra) by inserting Article 21A of the Constitution of India, which reads as under: "The right to education which flows from Article 21 is not an absolute right. It must be construed in the light of directive principles. A true democracy is one where education is universal, where people understand what is good for them and the nation and the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means that every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. It is significant that among the several articles in Part IV, only Article 45 speaks of a time limit; no other article does. It is not a mere pious wish and he Sate cannot flout the said direction even after 44 years on the ground that the article merely calls upon it to "endeavour to provide" the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. The passage of 44 years more than four time the period stip0ulated in Article 45 has converted the obligation created by the article into an enforceable right. At least now the State should honour the command of Article 45. It must be made a reality." 25. Sixty years of independence, however, has not brought about the desired result of imparting compulsory education to all the children. Education is one of the most important functions of the State. The State has a basic responsibility in regard thereto. 26. In Brown v. Board of Education [(98 L.Ed. 873 : 347 US 483 (1954)], Earl Warren, CJ, speaking for the US Supreme Court emphasized the right to education in the following terms : "Today, education is the most important function of the State and local Governments - It is required in the performance of our most basic responsibility, even services in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." 27. The provisions of the 1950 and 1951 Acts although were enacted in terms of Article 324 of the Constitution of India, the same must be given restricted meaning. Holding of an election is no doubt of paramount importance. But for the said purpose the education of the children cannot be neglected. Therefore, it is necessary to maintain the balance between the two. 28. With an advent of technology requisitioning of a large number of people for carrying out the election may not be necessary. We may notice that the Election Commission has different roles to play. Preparation of an electoral rolls, revision of electoral rolls, when objections are filed, hearing the parties and determining the objections, enumeration of the voter list and to hold elections as and when due. The Election Commission and its officers, in our opinion, can formulate an effective scheme to see that the services of a large number of teachers are not required. The State admittedly is not in a position to perform its sovereign function of imparting education. Such functions necessarily are required to be performed by the private actors. Those students who are in a position to get admission in the public schools presumably would also be in a position to appoint tutors whereas those students who are admitted to the Government schools ordinarily would be from the middle or lower middle class or poor families. The state of primary education in India is in deplorable condition. There admittedly is a heavy drop outs from the schools particular from amongst the girl schools. The question if right to exercise franchise whereupon the emphasis is laid by Mr. Venugopal is an important one, right to education is also no less important being a fundamental right. 29. The Human Rights Conventions have imposed a duty on the Contracting States to set up institutions of higher education which would lead to the conclusion that the citizens thereof should be afforded and an effective right of access to them. In a democratic society, a right to education is indispensable in the interpretation of right to development as a human right. [See Leyla Sahin v. Turkey, decided by the European Court of Human Rights on 10th November, 2005]. Thus, right to development is also considered to be a basic human right. 30. It is probably with that end in view the counsel appearing for the Election Commission had also joined the other counsel appearing for the respondents, to suggest the court that the services of the teachers may not be requisitioned on the days on which the schools are open. Submission of Mr. Venugopal that such a contention had not been made by the learned counsel appearing on behalf of the Election Commission cannot be accepted. 31. We have, however, considered the matter at some details as the question in regard to the application of the constitutional right and in particular fundamental right cannot be thwarted only by reason of a concession made by a counsel. 32. We would, however, notice that the Election Commission before us also categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non-teaching hours; whereas non-teaching staff be put on duty any time. | 0[ds]It is probably with that end in view the counsel appearing for the Election Commission had also joined the other counsel appearing for the respondents, to suggest the court that the services of the teachers may not be requisitioned on the days on which the schools are open. Submission of Mr. Venugopal that such a contention had not been made by the learned counsel appearing on behalf of the Election Commission cannot behave, however, considered the matter at some details as the question in regard to the application of the constitutional right and in particular fundamental right cannot be thwarted only by reason of a concession made by awould, however, notice that the Election Commission before us also categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non-teaching hours; whereas non-teaching staff be put on duty any time. | 0 | 5,758 | 165 | ### 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:
State is to provide for free and compulsory education for children until they complete the age of 14 years. The Constitution has been amended keeping in view the aforementioned provisions as also the decision of this Court in Unni Krishnan (supra) by inserting Article 21A of the Constitution of India, which reads as under: "The right to education which flows from Article 21 is not an absolute right. It must be construed in the light of directive principles. A true democracy is one where education is universal, where people understand what is good for them and the nation and the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means that every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. It is significant that among the several articles in Part IV, only Article 45 speaks of a time limit; no other article does. It is not a mere pious wish and he Sate cannot flout the said direction even after 44 years on the ground that the article merely calls upon it to "endeavour to provide" the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. The passage of 44 years more than four time the period stip0ulated in Article 45 has converted the obligation created by the article into an enforceable right. At least now the State should honour the command of Article 45. It must be made a reality." 25. Sixty years of independence, however, has not brought about the desired result of imparting compulsory education to all the children. Education is one of the most important functions of the State. The State has a basic responsibility in regard thereto. 26. In Brown v. Board of Education [(98 L.Ed. 873 : 347 US 483 (1954)], Earl Warren, CJ, speaking for the US Supreme Court emphasized the right to education in the following terms : "Today, education is the most important function of the State and local Governments - It is required in the performance of our most basic responsibility, even services in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." 27. The provisions of the 1950 and 1951 Acts although were enacted in terms of Article 324 of the Constitution of India, the same must be given restricted meaning. Holding of an election is no doubt of paramount importance. But for the said purpose the education of the children cannot be neglected. Therefore, it is necessary to maintain the balance between the two. 28. With an advent of technology requisitioning of a large number of people for carrying out the election may not be necessary. We may notice that the Election Commission has different roles to play. Preparation of an electoral rolls, revision of electoral rolls, when objections are filed, hearing the parties and determining the objections, enumeration of the voter list and to hold elections as and when due. The Election Commission and its officers, in our opinion, can formulate an effective scheme to see that the services of a large number of teachers are not required. The State admittedly is not in a position to perform its sovereign function of imparting education. Such functions necessarily are required to be performed by the private actors. Those students who are in a position to get admission in the public schools presumably would also be in a position to appoint tutors whereas those students who are admitted to the Government schools ordinarily would be from the middle or lower middle class or poor families. The state of primary education in India is in deplorable condition. There admittedly is a heavy drop outs from the schools particular from amongst the girl schools. The question if right to exercise franchise whereupon the emphasis is laid by Mr. Venugopal is an important one, right to education is also no less important being a fundamental right. 29. The Human Rights Conventions have imposed a duty on the Contracting States to set up institutions of higher education which would lead to the conclusion that the citizens thereof should be afforded and an effective right of access to them. In a democratic society, a right to education is indispensable in the interpretation of right to development as a human right. [See Leyla Sahin v. Turkey, decided by the European Court of Human Rights on 10th November, 2005]. Thus, right to development is also considered to be a basic human right. 30. It is probably with that end in view the counsel appearing for the Election Commission had also joined the other counsel appearing for the respondents, to suggest the court that the services of the teachers may not be requisitioned on the days on which the schools are open. Submission of Mr. Venugopal that such a contention had not been made by the learned counsel appearing on behalf of the Election Commission cannot be accepted. 31. We have, however, considered the matter at some details as the question in regard to the application of the constitutional right and in particular fundamental right cannot be thwarted only by reason of a concession made by a counsel. 32. We would, however, notice that the Election Commission before us also categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non-teaching hours; whereas non-teaching staff be put on duty any time.
### Response:
0
### Explanation:
It is probably with that end in view the counsel appearing for the Election Commission had also joined the other counsel appearing for the respondents, to suggest the court that the services of the teachers may not be requisitioned on the days on which the schools are open. Submission of Mr. Venugopal that such a contention had not been made by the learned counsel appearing on behalf of the Election Commission cannot behave, however, considered the matter at some details as the question in regard to the application of the constitutional right and in particular fundamental right cannot be thwarted only by reason of a concession made by awould, however, notice that the Election Commission before us also categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non-teaching hours; whereas non-teaching staff be put on duty any time.
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Ajit Savant Majagavi Vs. State of Karnataka | 113 of "Ashoka Lodge" where he had stayed on the fateful day and had left the "Lodge" with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellants presence in the room immediately before the death of Padmavathi and his conduct in not coming back to the "Lodge" are circumstances strong enough to establish his guilt. 34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in "Ashoka Lodge". 35. Ajit (P.W.2), room-boy of the "Lodge", in his statement on oath, has given out that the appellant had come with his wife and child to the "Ashoka Lodge" and had taken one room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the "Lodge" in the "Register of Lodgers". The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the "Lodge". These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the "Ashoka Lodge". 36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the "Ashoka Lodge", we looked into the "Register of Lodgers". It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the "Vakalatnama" filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the "Vakalatnama" with the signature in the "Register of Lodgers". A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under :- "S. 73. Comparison of signature, writing or seal with other admitted or proved. - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." 37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. (See State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 : 1979(2) SCC 158). 39. We have already recorded above that on the comparison of the signature in the "Register of Lodgers" with the appellants signature on the "Vakalatnama", we have not found any dissimilarity and are convinced that the appellant himself had signed the "Register of Lodgers" in token of having taken Room No. 113 in "Ashoka Lodge" on rent wherein he had stayed with his wife and the child.40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial Court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.41. The circumstances, the conduct and behaviour of the appellant conclusively establish his guilt and no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu Poet, Amir Meenai in a couplet :- "Qareeb hai yaro jo Roz-i-MahsharChhupey ga kushton ka khoon keonkarJo chup Rahegi Zaban-i-khanjarLahoo Pukarega Aastin Ka" 42. Translated into English, it will mean :- "On the day of Judgment, you will not be able to conceal the killing of innocents. If the sword will keep silent, the bloodstains on your sleeves will reveal your guilt." | 0[ds]The Addl. Sessions Judge had fallen into the web of this, apparently forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be reiterated as underIn an appeal against an order of acquittal, the High Court possesses all the powers and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in order words, perverse.(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.We have already recorded above that on the comparison of the signature in the "Register of Lodgers" with the appellants signature on the "Vakalatnama", we have not found any dissimilarity and are convinced that the appellant himself had signed the "Register of Lodgers" in token of having taken Room No. 113 in "Ashoka Lodge" on rent wherein he had stayed with his wife and the child.40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial Court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.41. The circumstances, the conduct and behaviour of the appellant conclusively establish his guilt and no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. | 0 | 5,522 | 855 | ### 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:
113 of "Ashoka Lodge" where he had stayed on the fateful day and had left the "Lodge" with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellants presence in the room immediately before the death of Padmavathi and his conduct in not coming back to the "Lodge" are circumstances strong enough to establish his guilt. 34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in "Ashoka Lodge". 35. Ajit (P.W.2), room-boy of the "Lodge", in his statement on oath, has given out that the appellant had come with his wife and child to the "Ashoka Lodge" and had taken one room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the "Lodge" in the "Register of Lodgers". The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the "Lodge". These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the "Ashoka Lodge". 36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the "Ashoka Lodge", we looked into the "Register of Lodgers". It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the "Vakalatnama" filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the "Vakalatnama" with the signature in the "Register of Lodgers". A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under :- "S. 73. Comparison of signature, writing or seal with other admitted or proved. - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." 37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. (See State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 : 1979(2) SCC 158). 39. We have already recorded above that on the comparison of the signature in the "Register of Lodgers" with the appellants signature on the "Vakalatnama", we have not found any dissimilarity and are convinced that the appellant himself had signed the "Register of Lodgers" in token of having taken Room No. 113 in "Ashoka Lodge" on rent wherein he had stayed with his wife and the child.40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial Court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.41. The circumstances, the conduct and behaviour of the appellant conclusively establish his guilt and no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu Poet, Amir Meenai in a couplet :- "Qareeb hai yaro jo Roz-i-MahsharChhupey ga kushton ka khoon keonkarJo chup Rahegi Zaban-i-khanjarLahoo Pukarega Aastin Ka" 42. Translated into English, it will mean :- "On the day of Judgment, you will not be able to conceal the killing of innocents. If the sword will keep silent, the bloodstains on your sleeves will reveal your guilt."
### Response:
0
### Explanation:
The Addl. Sessions Judge had fallen into the web of this, apparently forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be reiterated as underIn an appeal against an order of acquittal, the High Court possesses all the powers and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in order words, perverse.(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.We have already recorded above that on the comparison of the signature in the "Register of Lodgers" with the appellants signature on the "Vakalatnama", we have not found any dissimilarity and are convinced that the appellant himself had signed the "Register of Lodgers" in token of having taken Room No. 113 in "Ashoka Lodge" on rent wherein he had stayed with his wife and the child.40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial Court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.41. The circumstances, the conduct and behaviour of the appellant conclusively establish his guilt and no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity.
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Esso Standard Inc Vs. Udharam Bhagwandas Japanwalla | Maharashtra v. Syndicate Transport Co. that a company cannot be indictable for offences which can only be committed by a human individual, like treason, murder, bigamy, perjury, rape, etc. , or for offences punishable with imprisonment or corporal punishment, the propositions made at page 200 by L. M. Paranjpe J. that :". . . . . a corporate body ought to be indictable for criminal acts or omissions of its directors, or authorised agents or servants, whether they involve mens area or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body and that the question whether a corporate body should or should not be liable for criminal action resulting from the acts of some individual must depend on the nature of the offence disclosed by the allegations in the complaint or in the charge-sheet, the relative position of the officer or agent, vis--vis, the corporate body and the other relevant facts and circumstances which could show that the corporate body, as such, meant or intended to commit that act. " and further that each case will have necessarily to depend on its own facts, must be considered as propositions which ignore the constitution of corporate bodies under the memorandum of association and articles of association. This criticism appears to us to be justified having regard to what Lord Diplock has stated in his speech but the remarks of L. M. Paranjpe J. were obiter as the case was decided in the context of the question of liability of a company under section 420 of the Indian Penal Code alone and it was rightly held by L. M. Paranjpe J. that as section 420, Indian Penal Code, made it necessary for the court to inflict imprisonment, a company could not be indicted under that section. (32) PERHAPS the true view appears to be what Lord Reid has stated :"i think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. "(33) BUT it must be proved as a matter of fact that the officers were acting within the limits of their authority on behalf of the company. (34) APPLYING this test to the present case we feel no hesitation in holding that the complaint was drafted without any regard to these principles. There is not a word to suggest anywhere in the complaint that the officers-accused Nos. 2 to 5 - had done any act on behalf of the company so as to make such act in law the act of the company. On the contrary the averments made in the complaint this, in our judgment, is nothing but confused thinking on the matter. The law attributes to the company intention of the officers of the company under certain circumstances. The companys intention could be ascertained only when the company in a general body or at the meeting of the board of directors or in accordance with the memorandum of association or articles of association has expressed that intention in the form in which it should be expressed. In the absence of any such averments it is clear that the complaint against the applicant-company is clearly not maintainable in law having regard to the general principles of criminal liability enunciated by the House of Lords in the above case. (35) MR. Jethmalani, in our opinion, is also right in his contention that as the substance of the complaint is with respect to the loss sustained by the complainant in giving up his claim against the Esso Co. , although section 417, Indian Penal Code, is referred to in the complaint and in the process issued by the learned Magistrate the only section which could be, if at all, invoked by the complainant on the basis of his allegations was section 420, Indian Penal Code, and not section 417, Indian Penal Code, and hence the ratio of L. M. Paranjpe J. s judgment in State of maharashtra v. Syndicate Transport Co. would also apply and no indictment could be made against the company under section 420, Indian Penal Code. If no indictment could be made against the company the allegations of the complainant that the accused had common intention with the company also will fall to the ground and the complaint must be dismissed against all the accused. (36) MR. Paranjpe, learned counsel for the complainant, fairly stated that he could not submit that this court had no jurisdiction under section 561-A read with section 439 of the Criminal procedure Code to quash the proceedings against all the accused on an application filed by the applicant-company if this court found, as it has found, that the allegations made in the complaint did not constitute any offence and the complaint was not maintainable as it involves a civil dispute. It is, therefore, unnecessary for us to discuss the question any further.(37) MR. Jethmalani submitted that as the present complaint was filed on the same allegations on the basis of which the earlier complaint was filed and withdrawn, it was clear that the complainants motive in filing this complaint was not to vindicate the law but to coerce the accused by criminal process to enter into a settlement with regard to his false claim. He, therefore, submitted that this was a case in which compensation should be ordered under section 516-AA of the Criminal Procedure Code. There is undoubtedly some force in what Mr. Jethmalani has stated, but it is clear that there is a dispute as found by us above. In view of that dispute it is possible that the complainant was advised to file a complaint and it cannot be said that it is without any reasonable or proper cause. | 1[ds](17) IT is manifest that but for the averments that the claim of the complainant wasand process should be issued against the accused the complaint sounds almost like a plaint in civil suit. As far as we can see, what is alleged is nothing more than a breach of an assurance or undertaking or representation made by accused Nos. 2,3, and 4 to the complainant that even though the agreement was not an agreement for 50 years as it was automatically renewable every year it mounted to an automatic agreement renewable for 50 years and, hence, when they wrote on April, 3, 1968, that the agreement was terminated, the said accused Nos. 2, 3 and 4 and the company committed breach of the agreement to renew the agreement for 50 years. Merely stating in the complaint that the termination showed that the parties were "dishonest" from the beginning cannot convert a purely civil dispute like the present one into a crime.(18) A civil proceeding has for its object the recovery of money or other property, or the enforcement of a right for the advantage of the person suing, while criminal proceeding has for its object the punishment of a public offence. Criminal proceedings cannot be used as a means of recovering a civil debt in the absence of express provision to that effect. (See Halsburys Laws of england, Volume X, para. 502, page 271, and R. v. Peel). The allegations made in the complaint are not at all sufficient to attract the application section 417 and 420 read with sections 34, 109 and 114 of the Indian PenalThe complainant himself and signed the agreement which was an agreement renewable every year. Merely because he signed it believing the assurances of the officers that if he did not commit breach of the agreement the agreement would be renewed, it could not make the conduct of accused Nos. 2 to 4 dishonest in any manner. The complainant is a business man. He has signed the agreement with open eyes. It was clear that the agreement was renewable every year. It could not be so renewed without the consent of both the parties. In the face of the written agreement it is not open to the complainant to allege dishonest intention against the officers of the company. In these circumstances it is doubtful whether even a civil claim could be made by the complainant against the accused. By mere reproduction of the words "dishonestly" or "intention to cheat" a party cannot convert a purely civil dispute into aDISTINCTION between mere breach of contract and cheating depends upon the intention of the accused at the time of the alleged inducement which my be judged by his subsequent act of which the subsequent act is not the sole criteria. The complainant has inferred a dishonest intention on the part of the officers by their subsequent declaration that the agreement was already terminated as one year had expired. This inference is not open to him because on his own allegations he had signed the agreement renewable every years believing that it was renewable for a period of 50 years. He need not have signed the agreement. He has said in the complaint itself that the legal department of thehad said that the officers could not put in 50 years in the agreement. Hence it is clear that the complainant knew that the officers could not assure him at all that the agreement was renewable for 50 years. The allegations made in the complaint itself disclose only at the highest a mere breach of the contract which cannot give rise to a criminal proceeding against any of the accused. The ends of justice, therefore, require the proceedings to be quashed to prevent waste of time of the criminal court and multiplicity of proceedings and consequent harassment to thecriticism appears to us to be justified having regard to what Lord Diplock has stated in his speech but the remarks of L. M. Paranjpe J. were obiter as the case was decided in the context of the question of liability of a company under section 420 of the Indian Penal Code alone and it was rightly held by L. M. Paranjpe J. that as section 420, Indian Penal Code, made it necessary for the court to inflict imprisonment, a company could not be indicted under thatAPPLYING this test to the present case we feel no hesitation in holding that the complaint was drafted without any regard to these principles. There is not a word to suggest anywhere in the complaint that theNos. 2 to 5had done any act on behalf of the company so as to make such act in law the act of the company. On the contrary the averments made in the complaint this, in our judgment, is nothing but confused thinking on the matter. The law attributes to the company intention of the officers of the company under certain circumstances. The companys intention could be ascertained only when the company in a general body or at the meeting of the board of directors or in accordance with the memorandum of association or articles of association has expressed that intention in the form in which it should be expressed. In the absence of any such averments it is clear that the complaint against theis clearly not maintainable in law having regard to the general principles of criminal liability enunciated by the House of Lords in the aboveMR. Jethmalani, in our opinion, is also right in his contention that as the substance of the complaint is with respect to the loss sustained by the complainant in giving up his claim against the Esso Co. , although section 417, Indian Penal Code, is referred to in the complaint and in the process issued by the learned Magistrate the only section which could be, if at all, invoked by the complainant on the basis of his allegations was section 420, Indian Penal Code, and not section 417, Indian Penal Code, and hence the ratio of L. M. Paranjpe J. s judgment in State of maharashtra v. Syndicate Transport Co. would also apply and no indictment could be made against the company under section 420, Indian PenalIf no indictment could be made against the company the allegations of the complainant that the accused had common intention with the company also will fall to the ground and the complaint must be dismissed against all theMR. Paranjpe, learned counsel for the complainant, fairly stated that he could not submit that this court had no jurisdiction under sectionread with section 439 of the Criminal procedure Code to quash the proceedings against all the accused on an application filed by theif this court found, as it has found, that the allegations made in the complaint did not constitute any offence and the complaint was not maintainable as it involves a civil dispute. It is, therefore, unnecessary for us to discuss the question anyis undoubtedly some force in what Mr. Jethmalani has stated, but it is clear that there is a dispute as found by us above. In view of that dispute it is possible that the complainant was advised to file a complaint and it cannot be said that it is without any reasonable or proper cause. | 1 | 8,006 | 1,312 | ### 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:
Maharashtra v. Syndicate Transport Co. that a company cannot be indictable for offences which can only be committed by a human individual, like treason, murder, bigamy, perjury, rape, etc. , or for offences punishable with imprisonment or corporal punishment, the propositions made at page 200 by L. M. Paranjpe J. that :". . . . . a corporate body ought to be indictable for criminal acts or omissions of its directors, or authorised agents or servants, whether they involve mens area or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body and that the question whether a corporate body should or should not be liable for criminal action resulting from the acts of some individual must depend on the nature of the offence disclosed by the allegations in the complaint or in the charge-sheet, the relative position of the officer or agent, vis--vis, the corporate body and the other relevant facts and circumstances which could show that the corporate body, as such, meant or intended to commit that act. " and further that each case will have necessarily to depend on its own facts, must be considered as propositions which ignore the constitution of corporate bodies under the memorandum of association and articles of association. This criticism appears to us to be justified having regard to what Lord Diplock has stated in his speech but the remarks of L. M. Paranjpe J. were obiter as the case was decided in the context of the question of liability of a company under section 420 of the Indian Penal Code alone and it was rightly held by L. M. Paranjpe J. that as section 420, Indian Penal Code, made it necessary for the court to inflict imprisonment, a company could not be indicted under that section. (32) PERHAPS the true view appears to be what Lord Reid has stated :"i think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. "(33) BUT it must be proved as a matter of fact that the officers were acting within the limits of their authority on behalf of the company. (34) APPLYING this test to the present case we feel no hesitation in holding that the complaint was drafted without any regard to these principles. There is not a word to suggest anywhere in the complaint that the officers-accused Nos. 2 to 5 - had done any act on behalf of the company so as to make such act in law the act of the company. On the contrary the averments made in the complaint this, in our judgment, is nothing but confused thinking on the matter. The law attributes to the company intention of the officers of the company under certain circumstances. The companys intention could be ascertained only when the company in a general body or at the meeting of the board of directors or in accordance with the memorandum of association or articles of association has expressed that intention in the form in which it should be expressed. In the absence of any such averments it is clear that the complaint against the applicant-company is clearly not maintainable in law having regard to the general principles of criminal liability enunciated by the House of Lords in the above case. (35) MR. Jethmalani, in our opinion, is also right in his contention that as the substance of the complaint is with respect to the loss sustained by the complainant in giving up his claim against the Esso Co. , although section 417, Indian Penal Code, is referred to in the complaint and in the process issued by the learned Magistrate the only section which could be, if at all, invoked by the complainant on the basis of his allegations was section 420, Indian Penal Code, and not section 417, Indian Penal Code, and hence the ratio of L. M. Paranjpe J. s judgment in State of maharashtra v. Syndicate Transport Co. would also apply and no indictment could be made against the company under section 420, Indian Penal Code. If no indictment could be made against the company the allegations of the complainant that the accused had common intention with the company also will fall to the ground and the complaint must be dismissed against all the accused. (36) MR. Paranjpe, learned counsel for the complainant, fairly stated that he could not submit that this court had no jurisdiction under section 561-A read with section 439 of the Criminal procedure Code to quash the proceedings against all the accused on an application filed by the applicant-company if this court found, as it has found, that the allegations made in the complaint did not constitute any offence and the complaint was not maintainable as it involves a civil dispute. It is, therefore, unnecessary for us to discuss the question any further.(37) MR. Jethmalani submitted that as the present complaint was filed on the same allegations on the basis of which the earlier complaint was filed and withdrawn, it was clear that the complainants motive in filing this complaint was not to vindicate the law but to coerce the accused by criminal process to enter into a settlement with regard to his false claim. He, therefore, submitted that this was a case in which compensation should be ordered under section 516-AA of the Criminal Procedure Code. There is undoubtedly some force in what Mr. Jethmalani has stated, but it is clear that there is a dispute as found by us above. In view of that dispute it is possible that the complainant was advised to file a complaint and it cannot be said that it is without any reasonable or proper cause.
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1
### Explanation:
civil debt in the absence of express provision to that effect. (See Halsburys Laws of england, Volume X, para. 502, page 271, and R. v. Peel). The allegations made in the complaint are not at all sufficient to attract the application section 417 and 420 read with sections 34, 109 and 114 of the Indian PenalThe complainant himself and signed the agreement which was an agreement renewable every year. Merely because he signed it believing the assurances of the officers that if he did not commit breach of the agreement the agreement would be renewed, it could not make the conduct of accused Nos. 2 to 4 dishonest in any manner. The complainant is a business man. He has signed the agreement with open eyes. It was clear that the agreement was renewable every year. It could not be so renewed without the consent of both the parties. In the face of the written agreement it is not open to the complainant to allege dishonest intention against the officers of the company. In these circumstances it is doubtful whether even a civil claim could be made by the complainant against the accused. By mere reproduction of the words "dishonestly" or "intention to cheat" a party cannot convert a purely civil dispute into aDISTINCTION between mere breach of contract and cheating depends upon the intention of the accused at the time of the alleged inducement which my be judged by his subsequent act of which the subsequent act is not the sole criteria. The complainant has inferred a dishonest intention on the part of the officers by their subsequent declaration that the agreement was already terminated as one year had expired. This inference is not open to him because on his own allegations he had signed the agreement renewable every years believing that it was renewable for a period of 50 years. He need not have signed the agreement. He has said in the complaint itself that the legal department of thehad said that the officers could not put in 50 years in the agreement. Hence it is clear that the complainant knew that the officers could not assure him at all that the agreement was renewable for 50 years. The allegations made in the complaint itself disclose only at the highest a mere breach of the contract which cannot give rise to a criminal proceeding against any of the accused. The ends of justice, therefore, require the proceedings to be quashed to prevent waste of time of the criminal court and multiplicity of proceedings and consequent harassment to thecriticism appears to us to be justified having regard to what Lord Diplock has stated in his speech but the remarks of L. M. Paranjpe J. were obiter as the case was decided in the context of the question of liability of a company under section 420 of the Indian Penal Code alone and it was rightly held by L. M. Paranjpe J. that as section 420, Indian Penal Code, made it necessary for the court to inflict imprisonment, a company could not be indicted under thatAPPLYING this test to the present case we feel no hesitation in holding that the complaint was drafted without any regard to these principles. There is not a word to suggest anywhere in the complaint that theNos. 2 to 5had done any act on behalf of the company so as to make such act in law the act of the company. On the contrary the averments made in the complaint this, in our judgment, is nothing but confused thinking on the matter. The law attributes to the company intention of the officers of the company under certain circumstances. The companys intention could be ascertained only when the company in a general body or at the meeting of the board of directors or in accordance with the memorandum of association or articles of association has expressed that intention in the form in which it should be expressed. In the absence of any such averments it is clear that the complaint against theis clearly not maintainable in law having regard to the general principles of criminal liability enunciated by the House of Lords in the aboveMR. Jethmalani, in our opinion, is also right in his contention that as the substance of the complaint is with respect to the loss sustained by the complainant in giving up his claim against the Esso Co. , although section 417, Indian Penal Code, is referred to in the complaint and in the process issued by the learned Magistrate the only section which could be, if at all, invoked by the complainant on the basis of his allegations was section 420, Indian Penal Code, and not section 417, Indian Penal Code, and hence the ratio of L. M. Paranjpe J. s judgment in State of maharashtra v. Syndicate Transport Co. would also apply and no indictment could be made against the company under section 420, Indian PenalIf no indictment could be made against the company the allegations of the complainant that the accused had common intention with the company also will fall to the ground and the complaint must be dismissed against all theMR. Paranjpe, learned counsel for the complainant, fairly stated that he could not submit that this court had no jurisdiction under sectionread with section 439 of the Criminal procedure Code to quash the proceedings against all the accused on an application filed by theif this court found, as it has found, that the allegations made in the complaint did not constitute any offence and the complaint was not maintainable as it involves a civil dispute. It is, therefore, unnecessary for us to discuss the question anyis undoubtedly some force in what Mr. Jethmalani has stated, but it is clear that there is a dispute as found by us above. In view of that dispute it is possible that the complainant was advised to file a complaint and it cannot be said that it is without any reasonable or proper cause.
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Dr. Jess Raphael Vs. Regina Joseph | for his livelihood inasmuch as it is not ``business he was liable to be evicted since the bona fide need of the landlady was beyond dispute. A revision preferred by the tenant to the High Court was dismissed as not maintainable. 2. Before us, the only question that arises for determination is as to the scope of Section 11(3) of the Act. The contention on behalf of the tenant is the word ``business does not mean commercial activity. So long as a systematic activity is carried on it would be enough to call it ``business. This is a case in which the tenant-doctor and seven members of the staff are running a Nursing Home as a business. As a matter of fact on a similar point under the Andhra Pradesh Building (Lease and Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Control Act), this Court in S. Mohan Lal v. R. Kondiah, (1979 (3) SCR 12 ) : 1979(1) R.C.R. 708 (SC) held that the profession carried on by an advocate is a business. The attempt of the court below to distinguish that ruling is incorrect. Hence, the tenant- appellant is entitled to succeed. 3. Per contra the argument on behalf of the respondent-landlady is that it is not a business since no commercial activities are carried on while running a Nursing Home. The judgment of the learned District Judge is correct. 4. In order to appreciate the scope for the controversy we will extract Section 11(3) of the Act which is as follows : ``A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. For the application of second proviso the following two conditions are required to be satisfied in order to defeat the bona fide need of the landlord: (1) The tenant is dependent for his livelihood mainly on the income derived from any trade or business carried on in such a building. (2) There is no other suitable building available in the locality to carry on such trade or business. In this case the evidence is clear that there is no other suitable building. Equally, it is established that the tenant-doctor is mainly dependent upon the income derived from a Nursing Home. 5. Then, the only question is whether the running of a Nursing Home with seven members of the staff could amount to business. In Blacks Law Dictionary, Sixth Edition at page 198 the term ``business is defined as under: ``Business. Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood. Union League Club v. Johnson, 18 2d 275, 108 p.2d 487, 490. Enterprise in which person engaged shows willingness to invest time and capital on future outcome. Doggett v. Burnet, 62 App. D.C. 103,65 F.2d occupies or engages the time, attention, labour, and effort of persons as a principal serious concern or interest or for livelihood or profit. See also Association; Company; Corporation; Doing business; Joint enterprise; Partnership; Place of business; Trade. 6. In S. Mohan Lal (supra), a case which arose under the Control Act, it was held that the practice carried on by an advocate in relation to his profession can be said to be business. It was observed thus: ``It is a common expression which is sometimes used by itself and sometimes in a collocation of words as in `business, trade or profession. It is a word of large and wide import, capable of a variety of meanings. It is needless to refer to the meanings given to that term in the various Dictionaries except to say that every one of them notices a large number of meanings of the word. In a broad sense it is taken to mean `everything that occupies the time, attention and labour of men for the purpose of livelihood of profit. In a narrow sense it is confined to commercial activity. It is obvious that the meaning of the word must be gleaned from the context in which it is used. Reference to the provisions of the Constitution or other statutes where the expression is used cannot be of any assistance in determining its meaning is Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It is not a sound principle of construction to interpret the expression used in one Act with reference to their use in another Act; more so if the two Acts in which the same words is used, are not cognate Acts. Neither the meaning nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed, a well-known principle of construction that meaning of words and expressions used in an Act must take their colour from the context in which they appear. | 1[ds]For the application of second proviso the following two conditions are required to be satisfied in order to defeat the bona fide need of theThe tenant is dependent for his livelihood mainly on the income derived from any trade or business carried on in such aThere is no other suitable building available in the locality to carry on such trade orthis case the evidence is clear that there is no other suitable building. Equally, it is established that theis mainly dependent upon the income derived from a Nursing Home. | 1 | 1,355 | 96 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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for his livelihood inasmuch as it is not ``business he was liable to be evicted since the bona fide need of the landlady was beyond dispute. A revision preferred by the tenant to the High Court was dismissed as not maintainable. 2. Before us, the only question that arises for determination is as to the scope of Section 11(3) of the Act. The contention on behalf of the tenant is the word ``business does not mean commercial activity. So long as a systematic activity is carried on it would be enough to call it ``business. This is a case in which the tenant-doctor and seven members of the staff are running a Nursing Home as a business. As a matter of fact on a similar point under the Andhra Pradesh Building (Lease and Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Control Act), this Court in S. Mohan Lal v. R. Kondiah, (1979 (3) SCR 12 ) : 1979(1) R.C.R. 708 (SC) held that the profession carried on by an advocate is a business. The attempt of the court below to distinguish that ruling is incorrect. Hence, the tenant- appellant is entitled to succeed. 3. Per contra the argument on behalf of the respondent-landlady is that it is not a business since no commercial activities are carried on while running a Nursing Home. The judgment of the learned District Judge is correct. 4. In order to appreciate the scope for the controversy we will extract Section 11(3) of the Act which is as follows : ``A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. For the application of second proviso the following two conditions are required to be satisfied in order to defeat the bona fide need of the landlord: (1) The tenant is dependent for his livelihood mainly on the income derived from any trade or business carried on in such a building. (2) There is no other suitable building available in the locality to carry on such trade or business. In this case the evidence is clear that there is no other suitable building. Equally, it is established that the tenant-doctor is mainly dependent upon the income derived from a Nursing Home. 5. Then, the only question is whether the running of a Nursing Home with seven members of the staff could amount to business. In Blacks Law Dictionary, Sixth Edition at page 198 the term ``business is defined as under: ``Business. Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood. Union League Club v. Johnson, 18 2d 275, 108 p.2d 487, 490. Enterprise in which person engaged shows willingness to invest time and capital on future outcome. Doggett v. Burnet, 62 App. D.C. 103,65 F.2d occupies or engages the time, attention, labour, and effort of persons as a principal serious concern or interest or for livelihood or profit. See also Association; Company; Corporation; Doing business; Joint enterprise; Partnership; Place of business; Trade. 6. In S. Mohan Lal (supra), a case which arose under the Control Act, it was held that the practice carried on by an advocate in relation to his profession can be said to be business. It was observed thus: ``It is a common expression which is sometimes used by itself and sometimes in a collocation of words as in `business, trade or profession. It is a word of large and wide import, capable of a variety of meanings. It is needless to refer to the meanings given to that term in the various Dictionaries except to say that every one of them notices a large number of meanings of the word. In a broad sense it is taken to mean `everything that occupies the time, attention and labour of men for the purpose of livelihood of profit. In a narrow sense it is confined to commercial activity. It is obvious that the meaning of the word must be gleaned from the context in which it is used. Reference to the provisions of the Constitution or other statutes where the expression is used cannot be of any assistance in determining its meaning is Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It is not a sound principle of construction to interpret the expression used in one Act with reference to their use in another Act; more so if the two Acts in which the same words is used, are not cognate Acts. Neither the meaning nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed, a well-known principle of construction that meaning of words and expressions used in an Act must take their colour from the context in which they appear.
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1
### Explanation:
For the application of second proviso the following two conditions are required to be satisfied in order to defeat the bona fide need of theThe tenant is dependent for his livelihood mainly on the income derived from any trade or business carried on in such aThere is no other suitable building available in the locality to carry on such trade orthis case the evidence is clear that there is no other suitable building. Equally, it is established that theis mainly dependent upon the income derived from a Nursing Home.
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Commissioner Of Income-Tax, New Delhi Vs. Rao Thakur Narayan Singh | were set aside in the manner prescribed by the Act and that, if not so set aside, they were final. If so, it follows that the order of the Tribunal on the said question namely, that the whole order of reassessment under S. 34 of the Act was invalid as them was no "discovery" that the relevant income escaped assessment, had become final.10. The only two sections that enable the Income-tax Officer to reopen final assessments are Ss. 34 and 35. If the Appellate Tribunal committed a mistake under S. 35 it can be rectified within four years from the date of the order. In the present case it was a clear case of mistake, for the Tribunal set aside the order of reassessment in respect of the interest income, though its validity to that extent was not disputed. But, for one reason or other the Revenue did not resort to the obvious remedy and allowed the mistake to remain uncorrected. In these circumstances, can S. 34 of the Act be resorted to? Learned counsel for the Revenue says that S. 34(1) (a), as amended in 1948, confers such a power on the Income-tax Officer. The material part of S. 34, before amendment, read:"(1) If in consequence of definite information which has come into his possession the Income-tax Officer discovers that income, profits or gains chargeable to income-tax have escaped assessment in any year. . . . . . ."Section 34 (1)(a), as amended in 1948, reads :"If the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee . . . . . to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year . . . . he may in cases falling under clause (a) at any time. . . . serve on the assessee. . . a notice....."It is said that the words "has reason to believe that by reason of the omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable for that year, income, profits or gains chargeable to income-tax have escaped assessment" are more comprehensive than the words "the Income-tax Officer discovers that income, etc., have escaped assessment in any year" and, therefore, though there was a finding by the Tribunal that the Income-tax Officer did not "discover" that there was escape of assessment, the Income-tax Officer under the amended S. 34 can initiate proceedings in spite of that finding. We cannot accept this argument. It could not have been the intention of the Legislature by amending the section to enable the Income-tax Officer to reopen final decisions made against the Revenue in respect of questions that directly arose for decision in earlier proceedings. The Tribunal held in the earlier proceedings that the Income-tax Officer knew all the facts at the time he made the original assessment in regard to the income he later on sought to tax. The said finding necessarily implies that the Income-tax Officer had no reason to believe that because of the assessees failure to disclose the facts income has escaped assessment. The earlier finding is comprehensive enough to negative "any such reason" on the part of the Income-tax Officer. That finding is binding on him. He could not on the same facts reopen the proceedings on the ground that he had new information. If he did so, it would be a clear attempt to circumvent the said order, which had become final. We are not concerned in this appeal with a case where the Income-tax Officer got new information which he did not have at the time when the Tribunal made the order. The finding of the Tribunal is, therefore, binding on the Income-tax Officer and he cannot, in the circumstances of the case, reopen the assessment and initiate proceedings over again. If that was not the legal position we would be placing an unrestricted power of review in the hands of an Income-tax Officer to go behind the findings given by a hierarchy of tribunals and even those of the High Court and the Supreme Court with his changing moods.11. The decisions cited by the learned counsel for the Revenue do not countenance such a contention. Chakravartti, C. J., in R. K. Das and Co. v. Commr. of Income-tax, West Bengal, (1956) 30 ITR 439 : (AIR 1956 Cal 161 ), speaking for the Division Bench, only decided that the Income-tax Officer could not make a reassessment unless he issued the prescribed notice and issued it in a valid form. As the notice under S. 34 of the Act issued therein was held to be bad inasmuch as the Income-tax Officer did not take the sanction of the Commissioner, the learned Chief Justice held that the returns filed pursuant to such notice was also bad. We are not here concerned with that aspect of the case. The judgment of this Court in Commr. of Income-tax, B. and O. v. Maharaja Pratapsingh Bahadur, (1961) 41 ITR 421 : (AIR 1961 SC 1026 ), held that, as the earlier notice issued under S. 34(1) of the Act without the sanction of the Commissioner was bad, the entire proceedings for reassessment were illegal. There was an observation at the end of the judgment to the effect that "there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued." The point now raised before us, viz., how far and to what extent a final order made in earlier proceedings under S. 34 of the Act would be binding on the Income-tax Officer in subsequent proceedings under the said section was neither raised nor decided in that case.12. The said decisions, therefore, have no bearing on the question raised before us. | 1[ds]8. The Income-tax Act is a self-contained one. It creates a hierarchy of tribunals with original, appellate and revisional jurisdictions. Section 31 gives inter alia, right of appeal against some orders of the Income-tax Officer to the Appellate Assistant Commissioner, S. 33 provides for a further appeal to the Income-tax Appellate Tribunal; and sub-s. (6) of S. 33 says that save as provided in S. 66 orders passed by the Appellate Tribunal on appeal shall be final. Section 66 provides for reference to the High Court on a question of law; and S. 66A provides for appeals in certain cases to the Supreme Court. It is clear from the said provisions that the order of the Tribunal made within its jurisdiction, subject to the provisions of S. 66 of the Act, is final. Therefore, the decision of the Tribunal in respect of the subject-matter under appeal before it is final and cannot be reopened by the assessee or the Department.The only two sections that enable the Income-tax Officer to reopen final assessments are Ss. 34 and 35. If the Appellate Tribunal committed a mistake under S. 35 it can be rectified within four years from the date of the order. In the present case it was a clear case of mistake, for the Tribunal set aside the order of reassessment in respect of the interest income, though its validity to that extent was not disputed. But, for one reason or other the Revenue did not resort to the obvious remedy and allowed the mistake to remaincannot accept this argument. It could not have been the intention of the Legislature by amending the section to enable the Income-tax Officer to reopen final decisions made against the Revenue in respect of questions that directly arose for decision in earlier proceedings. The Tribunal held in the earlier proceedings that the Income-tax Officer knew all the facts at the time he made the original assessment in regard to the income he later on sought to tax. The said finding necessarily implies that the Income-tax Officer had no reason to believe that because of the assessees failure to disclose the facts income has escaped assessment. The earlier finding is comprehensive enough to negative "any such reason" on the part of the Income-tax Officer. That finding is binding on him. He could not on the same facts reopen the proceedings on the ground that he had new information. If he did so, it would be a clear attempt to circumvent the said order, which had become final. We are not concerned in this appeal with a case where the Income-tax Officer got new information which he did not have at the time when the Tribunal made the order. The finding of the Tribunal is, therefore, binding on the Income-tax Officer and he cannot, in the circumstances of the case, reopen the assessment and initiate proceedings over again. If that was not the legal position we would be placing an unrestricted power of review in the hands of an Income-tax Officer to go behind the findings given by a hierarchy of tribunals and even those of the High Court and the Supreme Court with his changing moods.have extracted the order in extenso as the argument really turns upon the scope of the said order. The Appellate Tribunal in considering the validity of the notice under S. 34 of the Act only discussed the question of the escape of the syar income; it did not advert to the interest income at all. It came to the conclusion, having regard to the fact that theOfficer at the time he made the original assessment had knowledge of the existence of the syar income, that theOfficer did not come into possession of definite information within the meaning of S. 34 of the Act. Though the finding was arrived at on the basis of the syar income alone the Tribunal set aside the entire order of reassessment and restored the original order of assessment made by theOfficer under S. 23(3) of the Act. The legal effect of the order was that the reassessment of the entire income, including the syar income and interest income, was set aside on the ground that theOfficer did not come into possession of definite information leading to a "discovery" and, therefore, he could not initiate proceedings under S. 34 of the Act. It is true that the Tribunal had committed a mistake in setting aside the reassessment order in respect of the interest income also; but, so long as that order stands, it comprehends both the incomes. | 1 | 3,086 | 828 | ### Instruction:
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were set aside in the manner prescribed by the Act and that, if not so set aside, they were final. If so, it follows that the order of the Tribunal on the said question namely, that the whole order of reassessment under S. 34 of the Act was invalid as them was no "discovery" that the relevant income escaped assessment, had become final.10. The only two sections that enable the Income-tax Officer to reopen final assessments are Ss. 34 and 35. If the Appellate Tribunal committed a mistake under S. 35 it can be rectified within four years from the date of the order. In the present case it was a clear case of mistake, for the Tribunal set aside the order of reassessment in respect of the interest income, though its validity to that extent was not disputed. But, for one reason or other the Revenue did not resort to the obvious remedy and allowed the mistake to remain uncorrected. In these circumstances, can S. 34 of the Act be resorted to? Learned counsel for the Revenue says that S. 34(1) (a), as amended in 1948, confers such a power on the Income-tax Officer. The material part of S. 34, before amendment, read:"(1) If in consequence of definite information which has come into his possession the Income-tax Officer discovers that income, profits or gains chargeable to income-tax have escaped assessment in any year. . . . . . ."Section 34 (1)(a), as amended in 1948, reads :"If the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee . . . . . to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year . . . . he may in cases falling under clause (a) at any time. . . . serve on the assessee. . . a notice....."It is said that the words "has reason to believe that by reason of the omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable for that year, income, profits or gains chargeable to income-tax have escaped assessment" are more comprehensive than the words "the Income-tax Officer discovers that income, etc., have escaped assessment in any year" and, therefore, though there was a finding by the Tribunal that the Income-tax Officer did not "discover" that there was escape of assessment, the Income-tax Officer under the amended S. 34 can initiate proceedings in spite of that finding. We cannot accept this argument. It could not have been the intention of the Legislature by amending the section to enable the Income-tax Officer to reopen final decisions made against the Revenue in respect of questions that directly arose for decision in earlier proceedings. The Tribunal held in the earlier proceedings that the Income-tax Officer knew all the facts at the time he made the original assessment in regard to the income he later on sought to tax. The said finding necessarily implies that the Income-tax Officer had no reason to believe that because of the assessees failure to disclose the facts income has escaped assessment. The earlier finding is comprehensive enough to negative "any such reason" on the part of the Income-tax Officer. That finding is binding on him. He could not on the same facts reopen the proceedings on the ground that he had new information. If he did so, it would be a clear attempt to circumvent the said order, which had become final. We are not concerned in this appeal with a case where the Income-tax Officer got new information which he did not have at the time when the Tribunal made the order. The finding of the Tribunal is, therefore, binding on the Income-tax Officer and he cannot, in the circumstances of the case, reopen the assessment and initiate proceedings over again. If that was not the legal position we would be placing an unrestricted power of review in the hands of an Income-tax Officer to go behind the findings given by a hierarchy of tribunals and even those of the High Court and the Supreme Court with his changing moods.11. The decisions cited by the learned counsel for the Revenue do not countenance such a contention. Chakravartti, C. J., in R. K. Das and Co. v. Commr. of Income-tax, West Bengal, (1956) 30 ITR 439 : (AIR 1956 Cal 161 ), speaking for the Division Bench, only decided that the Income-tax Officer could not make a reassessment unless he issued the prescribed notice and issued it in a valid form. As the notice under S. 34 of the Act issued therein was held to be bad inasmuch as the Income-tax Officer did not take the sanction of the Commissioner, the learned Chief Justice held that the returns filed pursuant to such notice was also bad. We are not here concerned with that aspect of the case. The judgment of this Court in Commr. of Income-tax, B. and O. v. Maharaja Pratapsingh Bahadur, (1961) 41 ITR 421 : (AIR 1961 SC 1026 ), held that, as the earlier notice issued under S. 34(1) of the Act without the sanction of the Commissioner was bad, the entire proceedings for reassessment were illegal. There was an observation at the end of the judgment to the effect that "there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued." The point now raised before us, viz., how far and to what extent a final order made in earlier proceedings under S. 34 of the Act would be binding on the Income-tax Officer in subsequent proceedings under the said section was neither raised nor decided in that case.12. The said decisions, therefore, have no bearing on the question raised before us.
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8. The Income-tax Act is a self-contained one. It creates a hierarchy of tribunals with original, appellate and revisional jurisdictions. Section 31 gives inter alia, right of appeal against some orders of the Income-tax Officer to the Appellate Assistant Commissioner, S. 33 provides for a further appeal to the Income-tax Appellate Tribunal; and sub-s. (6) of S. 33 says that save as provided in S. 66 orders passed by the Appellate Tribunal on appeal shall be final. Section 66 provides for reference to the High Court on a question of law; and S. 66A provides for appeals in certain cases to the Supreme Court. It is clear from the said provisions that the order of the Tribunal made within its jurisdiction, subject to the provisions of S. 66 of the Act, is final. Therefore, the decision of the Tribunal in respect of the subject-matter under appeal before it is final and cannot be reopened by the assessee or the Department.The only two sections that enable the Income-tax Officer to reopen final assessments are Ss. 34 and 35. If the Appellate Tribunal committed a mistake under S. 35 it can be rectified within four years from the date of the order. In the present case it was a clear case of mistake, for the Tribunal set aside the order of reassessment in respect of the interest income, though its validity to that extent was not disputed. But, for one reason or other the Revenue did not resort to the obvious remedy and allowed the mistake to remaincannot accept this argument. It could not have been the intention of the Legislature by amending the section to enable the Income-tax Officer to reopen final decisions made against the Revenue in respect of questions that directly arose for decision in earlier proceedings. The Tribunal held in the earlier proceedings that the Income-tax Officer knew all the facts at the time he made the original assessment in regard to the income he later on sought to tax. The said finding necessarily implies that the Income-tax Officer had no reason to believe that because of the assessees failure to disclose the facts income has escaped assessment. The earlier finding is comprehensive enough to negative "any such reason" on the part of the Income-tax Officer. That finding is binding on him. He could not on the same facts reopen the proceedings on the ground that he had new information. If he did so, it would be a clear attempt to circumvent the said order, which had become final. We are not concerned in this appeal with a case where the Income-tax Officer got new information which he did not have at the time when the Tribunal made the order. The finding of the Tribunal is, therefore, binding on the Income-tax Officer and he cannot, in the circumstances of the case, reopen the assessment and initiate proceedings over again. If that was not the legal position we would be placing an unrestricted power of review in the hands of an Income-tax Officer to go behind the findings given by a hierarchy of tribunals and even those of the High Court and the Supreme Court with his changing moods.have extracted the order in extenso as the argument really turns upon the scope of the said order. The Appellate Tribunal in considering the validity of the notice under S. 34 of the Act only discussed the question of the escape of the syar income; it did not advert to the interest income at all. It came to the conclusion, having regard to the fact that theOfficer at the time he made the original assessment had knowledge of the existence of the syar income, that theOfficer did not come into possession of definite information within the meaning of S. 34 of the Act. Though the finding was arrived at on the basis of the syar income alone the Tribunal set aside the entire order of reassessment and restored the original order of assessment made by theOfficer under S. 23(3) of the Act. The legal effect of the order was that the reassessment of the entire income, including the syar income and interest income, was set aside on the ground that theOfficer did not come into possession of definite information leading to a "discovery" and, therefore, he could not initiate proceedings under S. 34 of the Act. It is true that the Tribunal had committed a mistake in setting aside the reassessment order in respect of the interest income also; but, so long as that order stands, it comprehends both the incomes.
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Thammanna Vs. K. Veera Reddy & Ors | case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal. 26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so. In this connection, the observations made by Wanchoo J. (as he then was) speaking for the Court, at page 547 of the Report, are apposite and may be extracted : When sub-section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision................ There is however, no. express provision in Chapter IV-A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that Ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so. The object apparently is that the election petition filed should, if any voter so desires be heard and decided. The sections dealing with substitution on death of the petitioner lead to that view : see Ss. 112-115. There is no. such provision for appeals. It seems to us that if Parliament intended that the provisions of Ss. 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap. IV-A an express provision could have been easily made to that effect in S. 116-A by adding a suitable provision in the section that the provisions of Ss. 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal. In the absence of such a provision in Chap. IV-A, we do not think that the High Court was right in importing the principles of Ss. 109 and 110 in the matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chap. IV-A is concerned, it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a Civil Court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of Ss. 109 and 110. The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under S. 116-A as in the matter of an appeal from an original decree before it, and there is no. warrant for importing any limitation in the matter on the analogy of Ss. 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under S. 116-A. 27. On the above reasoning, it was further held that the provisions, regarding withdrawal applicable to ordinary Civil Appeals before the High Court are applicable, also, to appeals under Section 116-A. Under Order XXIII, Rule 1 (1) of the Code of Civil Procedure, an appellant has the right to withdraw his appeal unconditionally; and if he is to make such application, the High Court has to grant it. 28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act. 29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition. | 1[ds]In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled. Before the High Court the appellant did not, at any stage, join the contest. He did not file any written statement or affidavit. He did not engage any counsel. He did not cross-examine the witnesses produced by the Election-Petitioner and the contesting respondent 1. He did not appear in the witness box. He did not address any arguments. In short, he did nothing tangible to participate in the proceedings before the High Court18. In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election-petition19. We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election-petitioner to file an appeal against the order of dismissal of his election-petition, any other elector, particularly who is a respondent in the election-petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpos of filing and continuing the appeal. It is true that an election-petition once filed cannot be abandoned or withdrawn by the petitioner at his sweetwill22. But it is equally clear from the language, setting and scheme of the provisions in Sections 109 to 116, that they do not, either in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court23. Firstly, these provisions are to be found in Chapter IV, under the main Caption : Withdrawal and Abatement of Election Petitions. Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of election-petitions and also to procedure in respect thereof before the High Court. The provisions relating to Appeals in Sections 116-A, 116-B and 116-C, have been included separately, in Chapter IV-A, captioned; Appeals24. Secondly, Section 116-C, as already noticed, enjoins upon the Supreme Court to hear determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No. doubt this is subject to the provisions of the Act and the rules if any, made thereunder. But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded, expressly or by necessary implication by any provision of the Act. There is no. provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act which curtails, restricts or fetters an appellants right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this Court which does so. If the intention of the Legislature was that the provisions of Secs. 109 to 116 which apply to the withdrawal of election-petitions, should also govern the withdrawal of appeals, there was no. difficulty in inserting similar provisions in Section 116-C or elsewhere in Chapter IV-A25. In this view we are fortified by the decision of this Court in Bijayananda Patnaiks case (ibid). (AIR 1963 SC 1566 ). In that case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition. | 1 | 4,743 | 1,118 | ### Instruction:
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case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal. 26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so. In this connection, the observations made by Wanchoo J. (as he then was) speaking for the Court, at page 547 of the Report, are apposite and may be extracted : When sub-section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision................ There is however, no. express provision in Chapter IV-A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that Ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so. The object apparently is that the election petition filed should, if any voter so desires be heard and decided. The sections dealing with substitution on death of the petitioner lead to that view : see Ss. 112-115. There is no. such provision for appeals. It seems to us that if Parliament intended that the provisions of Ss. 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap. IV-A an express provision could have been easily made to that effect in S. 116-A by adding a suitable provision in the section that the provisions of Ss. 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal. In the absence of such a provision in Chap. IV-A, we do not think that the High Court was right in importing the principles of Ss. 109 and 110 in the matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chap. IV-A is concerned, it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a Civil Court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of Ss. 109 and 110. The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under S. 116-A as in the matter of an appeal from an original decree before it, and there is no. warrant for importing any limitation in the matter on the analogy of Ss. 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under S. 116-A. 27. On the above reasoning, it was further held that the provisions, regarding withdrawal applicable to ordinary Civil Appeals before the High Court are applicable, also, to appeals under Section 116-A. Under Order XXIII, Rule 1 (1) of the Code of Civil Procedure, an appellant has the right to withdraw his appeal unconditionally; and if he is to make such application, the High Court has to grant it. 28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act. 29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition.
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### Explanation:
In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled. Before the High Court the appellant did not, at any stage, join the contest. He did not file any written statement or affidavit. He did not engage any counsel. He did not cross-examine the witnesses produced by the Election-Petitioner and the contesting respondent 1. He did not appear in the witness box. He did not address any arguments. In short, he did nothing tangible to participate in the proceedings before the High Court18. In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election-petition19. We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election-petitioner to file an appeal against the order of dismissal of his election-petition, any other elector, particularly who is a respondent in the election-petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpos of filing and continuing the appeal. It is true that an election-petition once filed cannot be abandoned or withdrawn by the petitioner at his sweetwill22. But it is equally clear from the language, setting and scheme of the provisions in Sections 109 to 116, that they do not, either in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court23. Firstly, these provisions are to be found in Chapter IV, under the main Caption : Withdrawal and Abatement of Election Petitions. Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of election-petitions and also to procedure in respect thereof before the High Court. The provisions relating to Appeals in Sections 116-A, 116-B and 116-C, have been included separately, in Chapter IV-A, captioned; Appeals24. Secondly, Section 116-C, as already noticed, enjoins upon the Supreme Court to hear determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No. doubt this is subject to the provisions of the Act and the rules if any, made thereunder. But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded, expressly or by necessary implication by any provision of the Act. There is no. provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act which curtails, restricts or fetters an appellants right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this Court which does so. If the intention of the Legislature was that the provisions of Secs. 109 to 116 which apply to the withdrawal of election-petitions, should also govern the withdrawal of appeals, there was no. difficulty in inserting similar provisions in Section 116-C or elsewhere in Chapter IV-A25. In this view we are fortified by the decision of this Court in Bijayananda Patnaiks case (ibid). (AIR 1963 SC 1566 ). In that case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition.
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Alva Aluminium Ltd. Bangkok Vs. Gabriel India Limited | Arbitral Tribunal can determine the existence of the arbitration agreement. Suffice it to say that the power available to the Arbitral Tribunal under Section 16 of the Act does not imply that the issue can be or ought to be left to be determined by the Arbitral Tribunal even in cases where one of the parties has filed a petition under Section 11 of the Act and the other party opposes the making of a reference on the ground that there exists no arbitration agreement between them. It is quite evident that the question whether or not an arbitration agreement exists between the parties will have to be answered for it is only if the answer to that question is in the affirmative that the Chief Justice or his designate can pass an order of reference of the disputes for adjudication. Question No. (1) is answered accordingly.Regarding Question No. 219. That there is a written contract document between the parties, is not in dispute. That an arbitration clause is found in the said contract is also not in dispute. That Shri Sandeep K. Dabir had negotiated the contract on behalf of the respondent is also a fact that is not disputed. That correspondence between the parties was exchanged before the signing of the document and the said correspondence was not only with Shri Dabir but with Shri Sengupta, who according to the respondent, was the competent authority to sign the document is also not in dispute. All that the respondent in the above backdrop argues is that Shri Sandeep K. Dabir was not competent to sign the contract and that Shri Dabir had been misdirected/enticed/misdirected to initial the contract which is according to the respondent, void in terms of the Contract Act, 1872. Reply sent by the respondent to the notices served upon it summarises the twin objections to the contract set up by the petitioner in the following words: “4. The documents, information and correspondence provided by our client clearly suggest that what was going on between M/s. Kliss Trading Pvt. Ltd. the representatives of your client and certain officials of our client was only some sort of negotiation in respect of the purchase of 150 MTAC2B aluminium ingots. At no point of time our client had entered into any contract with you for the purchase of the above said material.8. Our client further states that since your client had misguided/ enticed/ misdirected Mr. Dabir to initial the said contract the same is also void under the provision of the Indian Contract Act, 1872.” 20. The question, therefore, is whether the contract set up by the petitioners can be held non est for the two reasons indicated in paragraphs 4 and 8 extracted above. The defence set up by the respondent that the information and correspondence provided by the respondent was only suggestive of “some sort of negotiation” between the parties has not impressed me. The documents, information and correspondence when taken in their totality especially in the light of the signed contract document that stipulates the mutual rights and obligations of the parties do not show that the parties were simply negotiating a contract. The information provided, the correspondence exchanged and the documents executed are on the contrary clearly suggestive of the parties having finalized and signed a contract.21. So also the assertion of the respondent that the petitioner had mis-directed, enticed or mis-guided Shri Dabri who was admittedly negotiating the contract on its behalf, had no authority to do so need be noticed only to be rejected. There are no particulars leave alone any material to establish that the signatures appended by Shri Dabir to the contract document in token of its acceptance, was vitiated by any misrepresentation or such other considerations that could have the effect of vitiating the contract. In the absence of details and particulars of what, according to the respondent, constituted inducement, mis-guidance or mis-direction referred to in paragraph 8, it is difficult to see how a fluent use of such expressions can help the respondent in avoiding a contract that had come into existence between the parties. A heavy duty lies upon the party who seeks to avoid a contract on the ground of mis-representation, fraud or coercion to prove any such allegation. Nothing of the sort has been done in the instant case by the respondent. So much so the respondent has not even placed on record any charter of duties and powers of Shri Dabir and Shri Sengupta nor has it chosen to place on record any material to suggest that any action was indeed taken against Shri Dabir for the alleged transgression of the limits of his authority and if so the nature of the disciplinary action taken against him. All this information and material was within the special knowledge of the respondent. Non-furnishing of such information must, therefore, give rise to an adverse interference against it. The petitioner company had in any event no reason to believe or even suspect that Shri Dabir with whom it was dealing did not have the authority to sign the contract which was finalized between the two companies acting through their representatives. That is so especially when even according to the respondent, Shri Dabir had been authorized to negotiate the terms on behalf of the respondent. If Shri Dabir was competent to negotiate the terms of the contract, the petitioner cannot be said to have induced or defrauded him into signing of the contract, which was forwarded to the respondent and which was returned duly signed by Shri Dabir. The petitioner was in this backdrop justified in proceeding on the basis that the contract was duly negotiated and signed on behalf of the respondent company.22. In the totality of the above circumstances, I have no doubt that a legally valid contract had indeed come into existence between the parties which contained an arbitration clause for adjudication of disputes that may arise between them. Question No. (2) is accordingly answered in the affirmative. | 1[ds]17. It is in the light of above pronouncements, unnecessary to delve any further on this issue. It is clear that once the existence of the arbitration agreement itself is questioned by any party to the proceeding initiated under Section 11 of the Act, the same will have to be decided by the Chief Justice/designate as the case may be. That is because existence of an arbitration agreement is a jurisdictional fact which will have to be addressed while making an order on a petition under Section 11 of the Act. The position may be different where arbitration proceedings are initiated before a nominated arbitral Tribunal but the opposite party appears to dispute the existence of the arbitration agreement.So also the parties may without approaching the Chief Justice refer the matters in dispute to the nominated Tribunal including the question whether there exists an arbitration agreement. In any such case also the Arbitral Tribunal can determine the existence of the arbitration agreement. Suffice it to say that the power available to the Arbitral Tribunal under Section 16 of the Act does not imply that the issue can be or ought to be left to be determined by the Arbitral Tribunal even in cases where one of the parties has filed a petition under Section 11 of the Act and the other party opposes the making of a reference on the ground that there exists no arbitration agreement between them. It is quite evident that the question whether or not an arbitration agreement exists between the parties will have to be answered for it is only if the answer to that question is in the affirmative that the Chief Justice or his designate can pass an order of reference of the disputes for adjudication. Question No. (1) is answered accordingly.Regarding Question No. 219. That there is a written contract document between the parties, is not in dispute. That an arbitration clause is found in the said contract is also not in dispute. That Shri Sandeep K. Dabir had negotiated the contract on behalf of the respondent is also a fact that is not disputed. That correspondence between the parties was exchanged before the signing of the document and the said correspondence was not only with Shri Dabir but with Shri Sengupta, who according to the respondent, was the competent authority to sign the document is also not in dispute. All that the respondent in the above backdrop argues is that Shri Sandeep K. Dabir was not competent to sign the contract and that Shri Dabir had been misdirected/enticed/misdirected to initial the contract which is according to the respondent, void in terms of the Contract Act, 1872.The question, therefore, is whether the contract set up by the petitioners can be held non est for the two reasons indicated in paragraphs 4 and 8 extracted above. The defence set up by the respondent that the information and correspondence provided by the respondent was only suggestive ofbetween the parties has not impressed me. The documents, information and correspondence when taken in their totality especially in the light of the signed contract document that stipulates the mutual rights and obligations of the parties do not show that the parties were simply negotiating a contract. The information provided, the correspondence exchanged and the documents executed are on the contrary clearly suggestive of the parties having finalized and signed a contract.21. So also the assertion of the respondent that the petitioner hadded Shri Dabri who was admittedly negotiating the contract on its behalf, had no authority to do so need be noticed only to be rejected. There are no particulars leave alone any material to establish that the signatures appended by Shri Dabir to the contract document in token of its acceptance, was vitiated by any misrepresentation or such other considerations that could have the effect of vitiating the contract. In the absence of details and particulars of what, according to the respondent, constituted inducement,on referred to in paragraph 8, it is difficult to see how a fluent use of such expressions can help the respondent in avoiding a contract that had come into existence between the parties. A heavy duty lies upon the party who seeks to avoid a contract on the ground offraud or coercion to prove any such allegation. Nothing of the sort has been done in the instant case by the respondent. So much so the respondent has not even placed on record any charter of duties and powers of Shri Dabir and Shri Sengupta nor has it chosen to place on record any material to suggest that any action was indeed taken against Shri Dabir for the alleged transgression of the limits of his authority and if so the nature of the disciplinary action taken against him. All this information and material was within the special knowledge of the respondent.of such information must, therefore, give rise to an adverse interference against it. The petitioner company had in any event no reason to believe or even suspect that Shri Dabir with whom it was dealing did not have the authority to sign the contract which was finalized between the two companies acting through their representatives. That is so especially when even according to the respondent, Shri Dabir had been authorized to negotiate the terms on behalf of the respondent. If Shri Dabir was competent to negotiate the terms of the contract, the petitioner cannot be said to have induced or defrauded him into signing of the contract, which was forwarded to the respondent and which was returned duly signed by Shri Dabir. The petitioner was in this backdrop justified in proceeding on the basis that the contract was duly negotiated and signed on behalf of the respondent company.22. In the totality of the above circumstances, I have no doubt that a legally valid contract had indeed come into existence between the parties which contained an arbitration clause for adjudication of disputes that may arise between them. Question No. (2) is accordingly answered in the affirmative. | 1 | 3,736 | 1,068 | ### 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:
Arbitral Tribunal can determine the existence of the arbitration agreement. Suffice it to say that the power available to the Arbitral Tribunal under Section 16 of the Act does not imply that the issue can be or ought to be left to be determined by the Arbitral Tribunal even in cases where one of the parties has filed a petition under Section 11 of the Act and the other party opposes the making of a reference on the ground that there exists no arbitration agreement between them. It is quite evident that the question whether or not an arbitration agreement exists between the parties will have to be answered for it is only if the answer to that question is in the affirmative that the Chief Justice or his designate can pass an order of reference of the disputes for adjudication. Question No. (1) is answered accordingly.Regarding Question No. 219. That there is a written contract document between the parties, is not in dispute. That an arbitration clause is found in the said contract is also not in dispute. That Shri Sandeep K. Dabir had negotiated the contract on behalf of the respondent is also a fact that is not disputed. That correspondence between the parties was exchanged before the signing of the document and the said correspondence was not only with Shri Dabir but with Shri Sengupta, who according to the respondent, was the competent authority to sign the document is also not in dispute. All that the respondent in the above backdrop argues is that Shri Sandeep K. Dabir was not competent to sign the contract and that Shri Dabir had been misdirected/enticed/misdirected to initial the contract which is according to the respondent, void in terms of the Contract Act, 1872. Reply sent by the respondent to the notices served upon it summarises the twin objections to the contract set up by the petitioner in the following words: “4. The documents, information and correspondence provided by our client clearly suggest that what was going on between M/s. Kliss Trading Pvt. Ltd. the representatives of your client and certain officials of our client was only some sort of negotiation in respect of the purchase of 150 MTAC2B aluminium ingots. At no point of time our client had entered into any contract with you for the purchase of the above said material.8. Our client further states that since your client had misguided/ enticed/ misdirected Mr. Dabir to initial the said contract the same is also void under the provision of the Indian Contract Act, 1872.” 20. The question, therefore, is whether the contract set up by the petitioners can be held non est for the two reasons indicated in paragraphs 4 and 8 extracted above. The defence set up by the respondent that the information and correspondence provided by the respondent was only suggestive of “some sort of negotiation” between the parties has not impressed me. The documents, information and correspondence when taken in their totality especially in the light of the signed contract document that stipulates the mutual rights and obligations of the parties do not show that the parties were simply negotiating a contract. The information provided, the correspondence exchanged and the documents executed are on the contrary clearly suggestive of the parties having finalized and signed a contract.21. So also the assertion of the respondent that the petitioner had mis-directed, enticed or mis-guided Shri Dabri who was admittedly negotiating the contract on its behalf, had no authority to do so need be noticed only to be rejected. There are no particulars leave alone any material to establish that the signatures appended by Shri Dabir to the contract document in token of its acceptance, was vitiated by any misrepresentation or such other considerations that could have the effect of vitiating the contract. In the absence of details and particulars of what, according to the respondent, constituted inducement, mis-guidance or mis-direction referred to in paragraph 8, it is difficult to see how a fluent use of such expressions can help the respondent in avoiding a contract that had come into existence between the parties. A heavy duty lies upon the party who seeks to avoid a contract on the ground of mis-representation, fraud or coercion to prove any such allegation. Nothing of the sort has been done in the instant case by the respondent. So much so the respondent has not even placed on record any charter of duties and powers of Shri Dabir and Shri Sengupta nor has it chosen to place on record any material to suggest that any action was indeed taken against Shri Dabir for the alleged transgression of the limits of his authority and if so the nature of the disciplinary action taken against him. All this information and material was within the special knowledge of the respondent. Non-furnishing of such information must, therefore, give rise to an adverse interference against it. The petitioner company had in any event no reason to believe or even suspect that Shri Dabir with whom it was dealing did not have the authority to sign the contract which was finalized between the two companies acting through their representatives. That is so especially when even according to the respondent, Shri Dabir had been authorized to negotiate the terms on behalf of the respondent. If Shri Dabir was competent to negotiate the terms of the contract, the petitioner cannot be said to have induced or defrauded him into signing of the contract, which was forwarded to the respondent and which was returned duly signed by Shri Dabir. The petitioner was in this backdrop justified in proceeding on the basis that the contract was duly negotiated and signed on behalf of the respondent company.22. In the totality of the above circumstances, I have no doubt that a legally valid contract had indeed come into existence between the parties which contained an arbitration clause for adjudication of disputes that may arise between them. Question No. (2) is accordingly answered in the affirmative.
### Response:
1
### Explanation:
is in the light of above pronouncements, unnecessary to delve any further on this issue. It is clear that once the existence of the arbitration agreement itself is questioned by any party to the proceeding initiated under Section 11 of the Act, the same will have to be decided by the Chief Justice/designate as the case may be. That is because existence of an arbitration agreement is a jurisdictional fact which will have to be addressed while making an order on a petition under Section 11 of the Act. The position may be different where arbitration proceedings are initiated before a nominated arbitral Tribunal but the opposite party appears to dispute the existence of the arbitration agreement.So also the parties may without approaching the Chief Justice refer the matters in dispute to the nominated Tribunal including the question whether there exists an arbitration agreement. In any such case also the Arbitral Tribunal can determine the existence of the arbitration agreement. Suffice it to say that the power available to the Arbitral Tribunal under Section 16 of the Act does not imply that the issue can be or ought to be left to be determined by the Arbitral Tribunal even in cases where one of the parties has filed a petition under Section 11 of the Act and the other party opposes the making of a reference on the ground that there exists no arbitration agreement between them. It is quite evident that the question whether or not an arbitration agreement exists between the parties will have to be answered for it is only if the answer to that question is in the affirmative that the Chief Justice or his designate can pass an order of reference of the disputes for adjudication. Question No. (1) is answered accordingly.Regarding Question No. 219. That there is a written contract document between the parties, is not in dispute. That an arbitration clause is found in the said contract is also not in dispute. That Shri Sandeep K. Dabir had negotiated the contract on behalf of the respondent is also a fact that is not disputed. That correspondence between the parties was exchanged before the signing of the document and the said correspondence was not only with Shri Dabir but with Shri Sengupta, who according to the respondent, was the competent authority to sign the document is also not in dispute. All that the respondent in the above backdrop argues is that Shri Sandeep K. Dabir was not competent to sign the contract and that Shri Dabir had been misdirected/enticed/misdirected to initial the contract which is according to the respondent, void in terms of the Contract Act, 1872.The question, therefore, is whether the contract set up by the petitioners can be held non est for the two reasons indicated in paragraphs 4 and 8 extracted above. The defence set up by the respondent that the information and correspondence provided by the respondent was only suggestive ofbetween the parties has not impressed me. The documents, information and correspondence when taken in their totality especially in the light of the signed contract document that stipulates the mutual rights and obligations of the parties do not show that the parties were simply negotiating a contract. The information provided, the correspondence exchanged and the documents executed are on the contrary clearly suggestive of the parties having finalized and signed a contract.21. So also the assertion of the respondent that the petitioner hadded Shri Dabri who was admittedly negotiating the contract on its behalf, had no authority to do so need be noticed only to be rejected. There are no particulars leave alone any material to establish that the signatures appended by Shri Dabir to the contract document in token of its acceptance, was vitiated by any misrepresentation or such other considerations that could have the effect of vitiating the contract. In the absence of details and particulars of what, according to the respondent, constituted inducement,on referred to in paragraph 8, it is difficult to see how a fluent use of such expressions can help the respondent in avoiding a contract that had come into existence between the parties. A heavy duty lies upon the party who seeks to avoid a contract on the ground offraud or coercion to prove any such allegation. Nothing of the sort has been done in the instant case by the respondent. So much so the respondent has not even placed on record any charter of duties and powers of Shri Dabir and Shri Sengupta nor has it chosen to place on record any material to suggest that any action was indeed taken against Shri Dabir for the alleged transgression of the limits of his authority and if so the nature of the disciplinary action taken against him. All this information and material was within the special knowledge of the respondent.of such information must, therefore, give rise to an adverse interference against it. The petitioner company had in any event no reason to believe or even suspect that Shri Dabir with whom it was dealing did not have the authority to sign the contract which was finalized between the two companies acting through their representatives. That is so especially when even according to the respondent, Shri Dabir had been authorized to negotiate the terms on behalf of the respondent. If Shri Dabir was competent to negotiate the terms of the contract, the petitioner cannot be said to have induced or defrauded him into signing of the contract, which was forwarded to the respondent and which was returned duly signed by Shri Dabir. The petitioner was in this backdrop justified in proceeding on the basis that the contract was duly negotiated and signed on behalf of the respondent company.22. In the totality of the above circumstances, I have no doubt that a legally valid contract had indeed come into existence between the parties which contained an arbitration clause for adjudication of disputes that may arise between them. Question No. (2) is accordingly answered in the affirmative.
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Shree Sita Ram Sugar Co. Ltd., Vs. The Presiding Officer, Labour Court & Others | to transfer a proceeding from one Labour Court or Tribunal to another. But having regard to the scheme of Section 6-G, read in the light of the other provisions referred to earlier, the section will have to be interpreted as giving to the State Government only a power to transfer a proceeding from one Labour Court to another. When Section 6 makes it obligatory that an award has to be made by the Tribunal concerned and that it has to be published by the State Government within thirty days of its receipt and declare that the award on publication becomes final, it is idle to expect that the legislature intended to nullify the entire proceedings by conferring an absolute power of withdrawal on the State Government under Section 6-G. The proper way of reading Section 6-G is to limit the power of withdrawal, referred to therein, only for the purpose of transferring the proceedings from one Labour Court or Tribunal to another. That the expression or in Section 6-G (1) interposed between withdraw any proceedings - or transfer a proceeding will have to be understood as and. So read, the power conferred under Section 6-G on the State Government is that of withdrawing any proceedings from one Labour Court or Tribunal and transferring the same to another.16. Mr. Pai drew our attention to Section 33-B of the Central Act and emphasised that the said section is worded differently from Section 6-G of the Act. According to him, the wording of Section 33-B clearly shows that the withdrawal of any proceedings is only for transferring the same to another Labour Court or Tribunal. On the other hand, the counsel pointed out that a different phraseology has been used in Section 6-G indicating the conferment of two distinct powers. We have already referred to this aspect and expressed the view that a superficial reading of Section 6-G will support the contention of Mr. Pai. If the expression or as mentioned earlier, is read as and the section does not present any difficulty. That having due regard to the scheme of the statute and the purpose sought to be served the expression or can be read under certain circumstances as and as has been laid down by this Court in Mazgaon Dock Ltd. v. Commr. of Income - tax and Excess Profits Tax, 1959 SCR 843 = ( AIR 1958 SC 861 ). Adopting the same principle and having due regard to the object of Section 6-G, which essentially is only to confer in the State Government a power to transfer a proceeding from one Labour Court or Tribunal to another, the expression or has to be read in Section 6-G as and. If so read sub-section (1) of Section 6-G confers on the State Government only a power to withdraw a proceeding from one Labour Court or Tribunal and transfer the same to another. It is needless to state that transfer of a proceeding can only be when it is pending before a Labour Court or Tribunal.17. Section 6-D, in our opinion, has no relevancy in construing S. 6-G. Section 6-D is enacted for a totally different purpose. For instance S. 6-B provides for conditions of service etc. to remain unchanged in certain circumstances during the pendency of proceedings. Similarly under S. 6-F a question may arise whether an employer has contravened the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal. It may be quite essential to consider whether any proceedings were pending, before a Labour Court or Tribunal. For the purpose of considering the question whether any proceedings were pending, the Act has created a fiction under Section 6-D by indicating the starting point of a proceeding before a Labour Court as well as its conclusion. The starting point of the proceedings has been fixed from the date of the reference and its termination has been fixed as the date on which the award becomes enforceable under Section 6-A. During this period broadly it has to be considered that proceedings are pending before a Labour. Court or Tribunal. We need not refer to the other provisions of the Act where the duration of the pendency of proceedings may assume importance. Section 6-D can be invoked only in those cases. But it does not come into the picture, as mentioned earlier in construing Section 6-G.18. Mr. Pai referred us to the decision of this Court in the Sirsilk Ltd. v. Govt. of Andhra Pradesh, (1964) 2 SCR 448 = (AIR 1964 SC 160 ) where the provisions of Sections 17 and 18 of the Central Act were read in harmony and the State Government was directed not to publish the award though its publication was mandatory. We are not faced with such a situation in the case before us. We have already referred to the fact that in Adjudication Case No. 98 of 1960, arising out of Reference No. II, respondents 4 to 6 herein had requested the Labour Court to exclude them from the said adjudication on the ground that they are already covered by Adjudication Case No. 93 of 1960 arising out of Reference No. I. The Labour Court passed an order on February 21, 1961, excluding the said three workmen from Adjudication Case No. 98 of 1960. That means the said three workmen had no further interest in the said Adjudication Case. If that is so, the award passed on February 26, 1961, in the case arising out of Reference No. I was perfectly correct and the publication of the said award on May 6, 1961, was also in pursuance of the mandatory provisions of the Act. There is no question of any conflict between the two awards. Hence the appellant cannot seek any assistance from the decision of this Court in (1964) 2 SCR 448 = (AIR 1964 SC 160 ) and it cannot ask for a writ of mandamus directing the State Government to cancel the publication of the award. | 0[ds]The above section clearly indicates that when once an industrial dispute has been referred for adjudication, the Labour Court or Tribunal has to conduct its proceedings expeditiously and it has to submit its award to the State Government The award has to be published within thirty days of its receipt by the State Government. Power has no doubt been given to the State Government, before publication of an award, to remit the same for reconsideration. When the same is received after reconsideration, the State Government is bound to publish the same, as provided under sub-section (3). An award published under sub-section (3) is final subject to the provision of Section 6-A. The Labour Court or Tribunal has power to correct any clerical or arithmetical mistake in the award. But if any such correction is made, a copy of the order making the correction will have to be sent to the State Government. The provisions relating to publication of an award apply to the order making a correction in the award.We have already pointed out that Section 6 casts a duty on the Tribunal, when a dispute has been referred to it, to deal with it expeditiously and to submit its award to the State Government. The State Government has also an obligation to publish the award within thirty days of its receipt. No doubt sub-section (4) of Section 6 gives power to the State Government, before publishing the award, to remit the same for reconsideration. But still a duty is cast upon the State Government to publish the award as reconsidered by the Tribunal within thirty days of its receipt. Section 6-A also gives certain powers to the State Government regarding the award, which normally becomes enforceable under sub-section (1) on the expiry of thirty days from the date of its publication.15. Section 6-G, in our opinion, deals only with the power of the State Government to transfer a proceeding from one Labour Court or Tribunal to another and for purposes of such transfer to withdraw the proceedings from the Labour Court or Tribunal from whom it is being transferred. We are free to admit that the wording of sub-section (1) is capable of being construed as conferring in the State Government a power to withdraw any proceedings or to transfer a proceeding from one Labour Court or Tribunal to another. But having regard to the scheme of Section 6-G, read in the light of the other provisions referred to earlier, the section will have to be interpreted as giving to the State Government only a power to transfer a proceeding from one Labour Court to another. When Section 6 makes it obligatory that an award has to be made by the Tribunal concerned and that it has to be published by the State Government within thirty days of its receipt and declare that the award on publication becomes final, it is idle to expect that the legislature intended to nullify the entire proceedings by conferring an absolute power of withdrawal on the State Government under Section 6-G. The proper way of reading Section 6-G is to limit the power of withdrawal, referred to therein, only for the purpose of transferring the proceedings from one Labour Court or Tribunal to another. That the expression or in Section 6-G (1) interposed between withdraw any proceedings - or transfer a proceeding will have to be understood as and. So read, the power conferred under Section 6-G on the State Government is that of withdrawing any proceedings from one Labour Court or Tribunal and transferring the same tohave already referred to this aspect and expressed the view that a superficial reading of Section 6-G will support the contention of Mr. Pai. If the expression or as mentioned earlier, is read as and the section does not present any difficulty. That having due regard to the scheme of the statute and the purpose sought to be served the expression or can be read under certain circumstances as and as has been laid down by this Court in Mazgaon Dock Ltd. v. Commr. of Income - tax and Excess Profits Tax, 1959 SCR 843 = ( AIR 1958 SC 861 ). Adopting the same principle and having due regard to the object of Section 6-G, which essentially is only to confer in the State Government a power to transfer a proceeding from one Labour Court or Tribunal to another, the expression or has to be read in Section 6-G as and. If so read sub-section (1) of Section 6-G confers on the State Government only a power to withdraw a proceeding from one Labour Court or Tribunal and transfer the same to another. It is needless to state that transfer of a proceeding can only be when it is pending before a Labour Court or Tribunal.17. Section 6-D, in our opinion, has no relevancy in construing S. 6-G. Section 6-D is enacted for a totally different purpose. For instance S. 6-B provides for conditions of service etc. to remain unchanged in certain circumstances during the pendency of proceedings. Similarly under S. 6-F a question may arise whether an employer has contravened the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal. It may be quite essential to consider whether any proceedings were pending, before a Labour Court or Tribunal. For the purpose of considering the question whether any proceedings were pending, the Act has created a fiction under Section 6-D by indicating the starting point of a proceeding before a Labour Court as well as its conclusion. The starting point of the proceedings has been fixed from the date of the reference and its termination has been fixed as the date on which the award becomes enforceable under Section 6-A. During this period broadly it has to be considered that proceedings are pending before a Labour. Court or Tribunal. We need not refer to the other provisions of the Act where the duration of the pendency of proceedings may assume importance. Section 6-D can be invoked only in those cases. But it does not come into the picture, as mentioned earlier in construing Sectionhave already referred to the fact that in Adjudication Case No. 98 of 1960, arising out of Reference No. II, respondents 4 to 6 herein had requested the Labour Court to exclude them from the said adjudication on the ground that they are already covered by Adjudication Case No. 93 of 1960 arising out of Reference No. I. The Labour Court passed an order on February 21, 1961, excluding the said three workmen from Adjudication Case No. 98 of 1960. That means the said three workmen had no further interest in the said Adjudication Case. If that is so, the award passed on February 26, 1961, in the case arising out of Reference No. I was perfectly correct and the publication of the said award on May 6, 1961, was also in pursuance of the mandatory provisions of the Act. There is no question of any conflict between the two awards. Hence the appellant cannot seek any assistance from the decision of this Court in (1964) 2 SCR 448 = (AIR 1964 SC 160 ) and it cannot ask for a writ of mandamus directing the State Government to cancel the publication of the award. | 0 | 5,089 | 1,327 | ### 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 transfer a proceeding from one Labour Court or Tribunal to another. But having regard to the scheme of Section 6-G, read in the light of the other provisions referred to earlier, the section will have to be interpreted as giving to the State Government only a power to transfer a proceeding from one Labour Court to another. When Section 6 makes it obligatory that an award has to be made by the Tribunal concerned and that it has to be published by the State Government within thirty days of its receipt and declare that the award on publication becomes final, it is idle to expect that the legislature intended to nullify the entire proceedings by conferring an absolute power of withdrawal on the State Government under Section 6-G. The proper way of reading Section 6-G is to limit the power of withdrawal, referred to therein, only for the purpose of transferring the proceedings from one Labour Court or Tribunal to another. That the expression or in Section 6-G (1) interposed between withdraw any proceedings - or transfer a proceeding will have to be understood as and. So read, the power conferred under Section 6-G on the State Government is that of withdrawing any proceedings from one Labour Court or Tribunal and transferring the same to another.16. Mr. Pai drew our attention to Section 33-B of the Central Act and emphasised that the said section is worded differently from Section 6-G of the Act. According to him, the wording of Section 33-B clearly shows that the withdrawal of any proceedings is only for transferring the same to another Labour Court or Tribunal. On the other hand, the counsel pointed out that a different phraseology has been used in Section 6-G indicating the conferment of two distinct powers. We have already referred to this aspect and expressed the view that a superficial reading of Section 6-G will support the contention of Mr. Pai. If the expression or as mentioned earlier, is read as and the section does not present any difficulty. That having due regard to the scheme of the statute and the purpose sought to be served the expression or can be read under certain circumstances as and as has been laid down by this Court in Mazgaon Dock Ltd. v. Commr. of Income - tax and Excess Profits Tax, 1959 SCR 843 = ( AIR 1958 SC 861 ). Adopting the same principle and having due regard to the object of Section 6-G, which essentially is only to confer in the State Government a power to transfer a proceeding from one Labour Court or Tribunal to another, the expression or has to be read in Section 6-G as and. If so read sub-section (1) of Section 6-G confers on the State Government only a power to withdraw a proceeding from one Labour Court or Tribunal and transfer the same to another. It is needless to state that transfer of a proceeding can only be when it is pending before a Labour Court or Tribunal.17. Section 6-D, in our opinion, has no relevancy in construing S. 6-G. Section 6-D is enacted for a totally different purpose. For instance S. 6-B provides for conditions of service etc. to remain unchanged in certain circumstances during the pendency of proceedings. Similarly under S. 6-F a question may arise whether an employer has contravened the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal. It may be quite essential to consider whether any proceedings were pending, before a Labour Court or Tribunal. For the purpose of considering the question whether any proceedings were pending, the Act has created a fiction under Section 6-D by indicating the starting point of a proceeding before a Labour Court as well as its conclusion. The starting point of the proceedings has been fixed from the date of the reference and its termination has been fixed as the date on which the award becomes enforceable under Section 6-A. During this period broadly it has to be considered that proceedings are pending before a Labour. Court or Tribunal. We need not refer to the other provisions of the Act where the duration of the pendency of proceedings may assume importance. Section 6-D can be invoked only in those cases. But it does not come into the picture, as mentioned earlier in construing Section 6-G.18. Mr. Pai referred us to the decision of this Court in the Sirsilk Ltd. v. Govt. of Andhra Pradesh, (1964) 2 SCR 448 = (AIR 1964 SC 160 ) where the provisions of Sections 17 and 18 of the Central Act were read in harmony and the State Government was directed not to publish the award though its publication was mandatory. We are not faced with such a situation in the case before us. We have already referred to the fact that in Adjudication Case No. 98 of 1960, arising out of Reference No. II, respondents 4 to 6 herein had requested the Labour Court to exclude them from the said adjudication on the ground that they are already covered by Adjudication Case No. 93 of 1960 arising out of Reference No. I. The Labour Court passed an order on February 21, 1961, excluding the said three workmen from Adjudication Case No. 98 of 1960. That means the said three workmen had no further interest in the said Adjudication Case. If that is so, the award passed on February 26, 1961, in the case arising out of Reference No. I was perfectly correct and the publication of the said award on May 6, 1961, was also in pursuance of the mandatory provisions of the Act. There is no question of any conflict between the two awards. Hence the appellant cannot seek any assistance from the decision of this Court in (1964) 2 SCR 448 = (AIR 1964 SC 160 ) and it cannot ask for a writ of mandamus directing the State Government to cancel the publication of the award.
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0
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doubt sub-section (4) of Section 6 gives power to the State Government, before publishing the award, to remit the same for reconsideration. But still a duty is cast upon the State Government to publish the award as reconsidered by the Tribunal within thirty days of its receipt. Section 6-A also gives certain powers to the State Government regarding the award, which normally becomes enforceable under sub-section (1) on the expiry of thirty days from the date of its publication.15. Section 6-G, in our opinion, deals only with the power of the State Government to transfer a proceeding from one Labour Court or Tribunal to another and for purposes of such transfer to withdraw the proceedings from the Labour Court or Tribunal from whom it is being transferred. We are free to admit that the wording of sub-section (1) is capable of being construed as conferring in the State Government a power to withdraw any proceedings or to transfer a proceeding from one Labour Court or Tribunal to another. But having regard to the scheme of Section 6-G, read in the light of the other provisions referred to earlier, the section will have to be interpreted as giving to the State Government only a power to transfer a proceeding from one Labour Court to another. When Section 6 makes it obligatory that an award has to be made by the Tribunal concerned and that it has to be published by the State Government within thirty days of its receipt and declare that the award on publication becomes final, it is idle to expect that the legislature intended to nullify the entire proceedings by conferring an absolute power of withdrawal on the State Government under Section 6-G. The proper way of reading Section 6-G is to limit the power of withdrawal, referred to therein, only for the purpose of transferring the proceedings from one Labour Court or Tribunal to another. That the expression or in Section 6-G (1) interposed between withdraw any proceedings - or transfer a proceeding will have to be understood as and. So read, the power conferred under Section 6-G on the State Government is that of withdrawing any proceedings from one Labour Court or Tribunal and transferring the same tohave already referred to this aspect and expressed the view that a superficial reading of Section 6-G will support the contention of Mr. Pai. If the expression or as mentioned earlier, is read as and the section does not present any difficulty. That having due regard to the scheme of the statute and the purpose sought to be served the expression or can be read under certain circumstances as and as has been laid down by this Court in Mazgaon Dock Ltd. v. Commr. of Income - tax and Excess Profits Tax, 1959 SCR 843 = ( AIR 1958 SC 861 ). Adopting the same principle and having due regard to the object of Section 6-G, which essentially is only to confer in the State Government a power to transfer a proceeding from one Labour Court or Tribunal to another, the expression or has to be read in Section 6-G as and. If so read sub-section (1) of Section 6-G confers on the State Government only a power to withdraw a proceeding from one Labour Court or Tribunal and transfer the same to another. It is needless to state that transfer of a proceeding can only be when it is pending before a Labour Court or Tribunal.17. Section 6-D, in our opinion, has no relevancy in construing S. 6-G. Section 6-D is enacted for a totally different purpose. For instance S. 6-B provides for conditions of service etc. to remain unchanged in certain circumstances during the pendency of proceedings. Similarly under S. 6-F a question may arise whether an employer has contravened the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal. It may be quite essential to consider whether any proceedings were pending, before a Labour Court or Tribunal. For the purpose of considering the question whether any proceedings were pending, the Act has created a fiction under Section 6-D by indicating the starting point of a proceeding before a Labour Court as well as its conclusion. The starting point of the proceedings has been fixed from the date of the reference and its termination has been fixed as the date on which the award becomes enforceable under Section 6-A. During this period broadly it has to be considered that proceedings are pending before a Labour. Court or Tribunal. We need not refer to the other provisions of the Act where the duration of the pendency of proceedings may assume importance. Section 6-D can be invoked only in those cases. But it does not come into the picture, as mentioned earlier in construing Sectionhave already referred to the fact that in Adjudication Case No. 98 of 1960, arising out of Reference No. II, respondents 4 to 6 herein had requested the Labour Court to exclude them from the said adjudication on the ground that they are already covered by Adjudication Case No. 93 of 1960 arising out of Reference No. I. The Labour Court passed an order on February 21, 1961, excluding the said three workmen from Adjudication Case No. 98 of 1960. That means the said three workmen had no further interest in the said Adjudication Case. If that is so, the award passed on February 26, 1961, in the case arising out of Reference No. I was perfectly correct and the publication of the said award on May 6, 1961, was also in pursuance of the mandatory provisions of the Act. There is no question of any conflict between the two awards. Hence the appellant cannot seek any assistance from the decision of this Court in (1964) 2 SCR 448 = (AIR 1964 SC 160 ) and it cannot ask for a writ of mandamus directing the State Government to cancel the publication of the award.
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International Airports Authority of India Vs. M.L. Dalmia Company Limited | R.C. LAHOTI, J. (1) Leave granted.(2) This is an appeal by special leave filed against the order of the High Court whereby the High Court refused to restore the appeal filed before it by the appellant, which was dismissed in default of appearance of the appellant and his counsel on 10.7.2001 (3) It appears that disputes and differences arising out of the contract entered into between the parties led to arbitration proceedingsAn award was given which was made a rule of the court by a learned single judge of High CourtFeeling aggrieved by the decree so passed, the appellant preferred a letters patent appealOn 19.12.1994, while issuing notice in the appeal, the High Court directed following interim order to be passed: "Notice for 31.1.1995, subject to the condition that the appellant deposits in court, the rupees, equivalent to the dollar value on the date of termination of the contractSo far as the withdrawal of the money, so deposited is concerned, half will be permitted to be withdrawn without security and the other half on furnishing bank guaranteeThis order is without prejudice to any contentions that may be raised by the respondent in the matter, after notice". (4) On 6.7.1999 and 18.7.2000, twice the appeal was dismissed in default of appearance, but allowed to be restoredOn 19.12.2000, the date appointed for hearing, there was no appearance for the appellantAgain there was default of appearance on 10.7.2001 and on this day the division bench directed the appeal to be dismissedThough restoration was applied for but taking the totality of the facts of the case, specially the conduct of the appellant suffering dismissal in default thrice, the High Court refused to show any indulgence to the appellant(5) Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.7.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellantLooking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms. | 1[ds](5) Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.7.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellantLooking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms. | 1 | 461 | 148 | ### 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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R.C. LAHOTI, J. (1) Leave granted.(2) This is an appeal by special leave filed against the order of the High Court whereby the High Court refused to restore the appeal filed before it by the appellant, which was dismissed in default of appearance of the appellant and his counsel on 10.7.2001 (3) It appears that disputes and differences arising out of the contract entered into between the parties led to arbitration proceedingsAn award was given which was made a rule of the court by a learned single judge of High CourtFeeling aggrieved by the decree so passed, the appellant preferred a letters patent appealOn 19.12.1994, while issuing notice in the appeal, the High Court directed following interim order to be passed: "Notice for 31.1.1995, subject to the condition that the appellant deposits in court, the rupees, equivalent to the dollar value on the date of termination of the contractSo far as the withdrawal of the money, so deposited is concerned, half will be permitted to be withdrawn without security and the other half on furnishing bank guaranteeThis order is without prejudice to any contentions that may be raised by the respondent in the matter, after notice". (4) On 6.7.1999 and 18.7.2000, twice the appeal was dismissed in default of appearance, but allowed to be restoredOn 19.12.2000, the date appointed for hearing, there was no appearance for the appellantAgain there was default of appearance on 10.7.2001 and on this day the division bench directed the appeal to be dismissedThough restoration was applied for but taking the totality of the facts of the case, specially the conduct of the appellant suffering dismissal in default thrice, the High Court refused to show any indulgence to the appellant(5) Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.7.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellantLooking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms.
### Response:
1
### Explanation:
(5) Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.7.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellantLooking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms.
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Union of India and another Vs. Abhiram Verma | 467-68, paras 10) 10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary…. 8.1 The law laid down by this Court in the case of Shree Lal Meena (supra) has been reiterated by this Court in the subsequent decision in the case of BSES Yamuna Power Ltd. (supra) and in the subsequent decision, this Court also considered the observations made in paragraph 26 in Shree Lal Meena (supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the resignation, the respondent has to suffer the consequences and now cannot be permitted to take U turn and say that what the respondent wanted was premature retirement and not resignation. 9. Now so far as the reliance placed by the respondent on Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also be counted for the purpose of pensionable service, the same cannot be accepted, firstly on the ground that the same was not raised before the High Court/AFT. Even otherwise also, the Pension Regulations of the Army, 2008 shall not be applicable to the case of the respondent as the respondent would be governed by the Pension Regulations, 1961, which have no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008. The same has no retrospective applicability. As such, the respondent had resigned on 15.04.2000 and even his resignation was accepted on 31.01.2007, much prior to the coming into force of the Pension Regulations of the Army, 2008. 10. Now so far as the reliance placed upon the decisions of this Court in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra) is concerned, the same shall not be applicable to the facts of the case on hand. Similarly, the decision of this Court in the case of Lt. Col. P.S. Bhargava (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the respondent. In the case before this Court, it was found that the officer completed the requisite qualifying service which was for the purpose of pensionable benefits. However, the same was sought to be denied on the ground that he voluntarily resigned. In the present case, as observed hereinabove, the minimum qualifying service for the purpose of pensionable benefits is 20 years as per Regulation 25(a) and if his case is considered as a late entrant, then 15 years as per Regulation 15. 11. In light of the above findings, it is required to be considered whether the respondent can be said to be a late entrant and is entitled to the benefit of Regulation 15 as a late entrant and the pensionable benefits or not? Regulation 15 reads as under: Regulation 15 – Late Entrants 15. For purposes of the regulations in this Chapter, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual) qualifying for pension but whose total qualifying service is less than twenty years (actual). As per Regulation 15, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual). As the respondent did not retire on reaching the prescribed age limit for compulsory retirement, the respondent cannot be said to be a late entrant. The purpose and object seems to be to give 5 years relaxation/grace for qualifying service for earning a retiring pension. As per Regulation 25(a), the minimum period of qualifying service actually rendered and required for earning a retiring pension shall be 20 years. However, if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a late entrant and is entitled to pensionary benefits by getting 5 years grace period. Therefore, to that extent the same can be said to be a relaxation/grace of 5 years for getting the benefit of pensionable benefits provided the case falls within Regulation 15 and an officer is a late entrant. As observed hereinabove, the respondent cannot be said to be a late entrant and therefore not entitled to the benefit of Regulation 15 and therefore not entitled to the pensionary benefits. | 1[ds]The submission on behalf of the respondent that what was tendered on 15.04.2000 was not an application for resignation but it was an application for voluntary retirement has no substance and cannot be accepted for the following reasons:i) that the qualifying service for the purpose of voluntary retirement is minimum 10 years service. On 15.04.2000, the respondent did not complete 10 years of service and therefore was not eligible for applying for voluntary retirement and therefore on 15.04.2000 otherwise also he could not have applied for voluntary retirement;ii) in the application dated 15.04.2000, the cause shown was lack of promotional aspects. Even the High Court of Jammu & Kashmir in its judgment and order dated 11.10.2006 which was filed by the respondent specifically noted the submission on behalf of the respondent that the petitioner having joined the Commission at a later stage has no chance of promotion to the first selection, i.e., to the rank of Colonel in the Army Medical Corps. Petitioner moved an application dated 15th April, 2000 before the respondents seeking resignation from the army on the ground of non-availability of promotional prospects and ineligibility to acquire technical skill. Even the High Court in its judgment and order dated 11.10.2006 treated and considered the application submitted by the respondent dated 15.04.2000 as application for resignation and proceeded on that footing. Even the subsequent petition filed before the High Court being SWP 454/2008, the respondent never contended that it was an application for voluntary retirement. If we see the averments in the writ petition all throughout the word used by the respondent is resignation. Therefore, only as an afterthought and to get the benefit of late entrant under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for voluntary retirement and it was not an application for resignation;iii) even as per the applicable rules for premature retirement/resignation of AMC Officers dated 26.3.1998, a request of an officer to seek premature retirement/resignation on the ground of lack of career prospects shall not be accepted and even if the officers are permitted to resign, they are not entitled to terminal/pensionary benefits; andiv) even from para 6 of the written submissions dated 15.09.2021 filed on behalf of the respondent, it can be seen that the respondent has accepted that on 15.04.2000 he was not eligible for voluntary retirement and therefore he used the word resignation to get out of the technical reason. Therefore, it can be said that he has admitted that on 15.04.2000 he did not fulfil the criteria for voluntary retirement as on that day he had not completed 10 years of service.Therefore, from the aforesaid facts, the only conclusion would be that on 15.04.2000 the respondent tendered resignation for lack of promotional avenues/aspects and it was not a case of voluntary retirement.7. Even, there is a distinction between the resignation and voluntary retirement. A person can resign at any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.8. This Court had an occasion to consider the distinction between resignation and voluntary retirement in the case of Senior Divisional Manager, LIC v. Shree Lal Meena, reported in (2019) 4 SCC 479, which has been subsequently followed by this Court in the case of BSES Yamuna Power Ltd. (supra). In paragraph 22, it is observed and held as under:22. The principles in the context of the controversy before us are well enunciated in the judgment of this Court in RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737]. On a similar factual matrix, the employees had resigned sometime in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination. The relevant observations are as under: (SCC pp. 467-68, paras 10)10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary….8.1 The law laid down by this Court in the case of Shree Lal Meena (supra) has been reiterated by this Court in the subsequent decision in the case of BSES Yamuna Power Ltd. (supra) and in the subsequent decision, this Court also considered the observations made in paragraph 26 in Shree Lal Meena (supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the resignation, the respondent has to suffer the consequences and now cannot be permitted to take U turn and say that what the respondent wanted was premature retirement and not resignation.9. Now so far as the reliance placed by the respondent on Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also be counted for the purpose of pensionable service, the same cannot be accepted, firstly on the ground that the same was not raised before the High Court/AFT. Even otherwise also, the Pension Regulations of the Army, 2008 shall not be applicable to the case of the respondent as the respondent would be governed by the Pension Regulations, 1961, which have no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008. The same has no retrospective applicability. As such, the respondent had resigned on 15.04.2000 and even his resignation was accepted on 31.01.2007, much prior to the coming into force of the Pension Regulations of the Army, 2008.10. Now so far as the reliance placed upon the decisions of this Court in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra) is concerned, the same shall not be applicable to the facts of the case on hand. Similarly, the decision of this Court in the case of Lt. Col. P.S. Bhargava (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the respondent. In the case before this Court, it was found that the officer completed the requisite qualifying service which was for the purpose of pensionable benefits. However, the same was sought to be denied on the ground that he voluntarily resigned. In the present case, as observed hereinabove, the minimum qualifying service for the purpose of pensionable benefits is 20 years as per Regulation 25(a) and if his case is considered as a late entrant, then 15 years as per Regulation 15.As per Regulation 15, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual). As the respondent did not retire on reaching the prescribed age limit for compulsory retirement, the respondent cannot be said to be a late entrant. The purpose and object seems to be to give 5 years relaxation/grace for qualifying service for earning a retiring pension. As per Regulation 25(a), the minimum period of qualifying service actually rendered and required for earning a retiring pension shall be 20 years. However, if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a late entrant and is entitled to pensionary benefits by getting 5 years grace period. Therefore, to that extent the same can be said to be a relaxation/grace of 5 years for getting the benefit of pensionable benefits provided the case falls within Regulation 15 and an officer is a late entrant. As observed hereinabove, the respondent cannot be said to be a late entrant and therefore not entitled to the benefit of Regulation 15 and therefore not entitled to the pensionary benefits. | 1 | 5,140 | 1,760 | ### 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:
467-68, paras 10) 10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary…. 8.1 The law laid down by this Court in the case of Shree Lal Meena (supra) has been reiterated by this Court in the subsequent decision in the case of BSES Yamuna Power Ltd. (supra) and in the subsequent decision, this Court also considered the observations made in paragraph 26 in Shree Lal Meena (supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the resignation, the respondent has to suffer the consequences and now cannot be permitted to take U turn and say that what the respondent wanted was premature retirement and not resignation. 9. Now so far as the reliance placed by the respondent on Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also be counted for the purpose of pensionable service, the same cannot be accepted, firstly on the ground that the same was not raised before the High Court/AFT. Even otherwise also, the Pension Regulations of the Army, 2008 shall not be applicable to the case of the respondent as the respondent would be governed by the Pension Regulations, 1961, which have no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008. The same has no retrospective applicability. As such, the respondent had resigned on 15.04.2000 and even his resignation was accepted on 31.01.2007, much prior to the coming into force of the Pension Regulations of the Army, 2008. 10. Now so far as the reliance placed upon the decisions of this Court in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra) is concerned, the same shall not be applicable to the facts of the case on hand. Similarly, the decision of this Court in the case of Lt. Col. P.S. Bhargava (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the respondent. In the case before this Court, it was found that the officer completed the requisite qualifying service which was for the purpose of pensionable benefits. However, the same was sought to be denied on the ground that he voluntarily resigned. In the present case, as observed hereinabove, the minimum qualifying service for the purpose of pensionable benefits is 20 years as per Regulation 25(a) and if his case is considered as a late entrant, then 15 years as per Regulation 15. 11. In light of the above findings, it is required to be considered whether the respondent can be said to be a late entrant and is entitled to the benefit of Regulation 15 as a late entrant and the pensionable benefits or not? Regulation 15 reads as under: Regulation 15 – Late Entrants 15. For purposes of the regulations in this Chapter, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual) qualifying for pension but whose total qualifying service is less than twenty years (actual). As per Regulation 15, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual). As the respondent did not retire on reaching the prescribed age limit for compulsory retirement, the respondent cannot be said to be a late entrant. The purpose and object seems to be to give 5 years relaxation/grace for qualifying service for earning a retiring pension. As per Regulation 25(a), the minimum period of qualifying service actually rendered and required for earning a retiring pension shall be 20 years. However, if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a late entrant and is entitled to pensionary benefits by getting 5 years grace period. Therefore, to that extent the same can be said to be a relaxation/grace of 5 years for getting the benefit of pensionable benefits provided the case falls within Regulation 15 and an officer is a late entrant. As observed hereinabove, the respondent cannot be said to be a late entrant and therefore not entitled to the benefit of Regulation 15 and therefore not entitled to the pensionary benefits.
### Response:
1
### Explanation:
it is observed and held as under:22. The principles in the context of the controversy before us are well enunciated in the judgment of this Court in RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737]. On a similar factual matrix, the employees had resigned sometime in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination. The relevant observations are as under: (SCC pp. 467-68, paras 10)10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary….8.1 The law laid down by this Court in the case of Shree Lal Meena (supra) has been reiterated by this Court in the subsequent decision in the case of BSES Yamuna Power Ltd. (supra) and in the subsequent decision, this Court also considered the observations made in paragraph 26 in Shree Lal Meena (supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the resignation, the respondent has to suffer the consequences and now cannot be permitted to take U turn and say that what the respondent wanted was premature retirement and not resignation.9. Now so far as the reliance placed by the respondent on Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also be counted for the purpose of pensionable service, the same cannot be accepted, firstly on the ground that the same was not raised before the High Court/AFT. Even otherwise also, the Pension Regulations of the Army, 2008 shall not be applicable to the case of the respondent as the respondent would be governed by the Pension Regulations, 1961, which have no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008. The same has no retrospective applicability. As such, the respondent had resigned on 15.04.2000 and even his resignation was accepted on 31.01.2007, much prior to the coming into force of the Pension Regulations of the Army, 2008.10. Now so far as the reliance placed upon the decisions of this Court in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra) is concerned, the same shall not be applicable to the facts of the case on hand. Similarly, the decision of this Court in the case of Lt. Col. P.S. Bhargava (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the respondent. In the case before this Court, it was found that the officer completed the requisite qualifying service which was for the purpose of pensionable benefits. However, the same was sought to be denied on the ground that he voluntarily resigned. In the present case, as observed hereinabove, the minimum qualifying service for the purpose of pensionable benefits is 20 years as per Regulation 25(a) and if his case is considered as a late entrant, then 15 years as per Regulation 15.As per Regulation 15, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual). As the respondent did not retire on reaching the prescribed age limit for compulsory retirement, the respondent cannot be said to be a late entrant. The purpose and object seems to be to give 5 years relaxation/grace for qualifying service for earning a retiring pension. As per Regulation 25(a), the minimum period of qualifying service actually rendered and required for earning a retiring pension shall be 20 years. However, if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a late entrant and is entitled to pensionary benefits by getting 5 years grace period. Therefore, to that extent the same can be said to be a relaxation/grace of 5 years for getting the benefit of pensionable benefits provided the case falls within Regulation 15 and an officer is a late entrant. As observed hereinabove, the respondent cannot be said to be a late entrant and therefore not entitled to the benefit of Regulation 15 and therefore not entitled to the pensionary benefits.
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A.K. Devaiah Vs. State Of Karnataka | word “shall” thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by [pic]her husband or any relative of her husband in connection with any demand of dowry.” 17. Section 113A of the Evidence Act and Section 107, IPC have also been considered by this Court in the case of Thanu Ram vs. State of M.P., (2010) 10 SCC 353 , this Court held as under:- “25. In our view, the element of instigation as understood within the meaning of Section 107 IPC is duly satisfied in this case in view of the provisions of Section 113-A of the Evidence Act, 1872, which provides for a presumption to be arrived at regarding abetment of suicide by a married woman and certain criteria are also laid down therein. The first criterion is that such suicide must have been committed within 7 years from the date of the victim’s marriage. Since Hirabai committed suicide in the 4th year of her marriage, such condition is duly satisfied. The second condition is that the husband or such relative of the husband had subjected the victim to cruelty which led to the commission of suicide by the victim. Section 113-A indicates that in such circumstances, the court may presume, having regard to all the circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” [pic] 18. In the case of Rajesh Bhatnagar vs. State of Uttarakhand, (2012) 7 SCC 91 , this Court held as under:- “15. Before we examine the merit or otherwise of this contention, it will be useful to state the basic ingredients of Section 304-B IPC. The requirement of Section 304-B is that the death of a woman be caused by burns, bodily injury or otherwise than in normal circumstances, within seven years of her marriage. Further, it should be shown that soon before her death, she was subjected to cruelty or harassment by her husband or her husband’s family or relatives and thirdly, that such harassment should be in relation to a demand for dowry. Once these three ingredients are satisfied, her death shall be treated as a “dowry death” and once a “dowry death” occurs, such husband or relative shall be presumed to have caused her death. Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is not only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law.xxxxxxx34. Furthermore, the entire conduct of the accused is such as to lead to only one plausible conclusion i.e. all the accused together had caused the death of the deceased. The arguments of the defence are strange because if the accused had attempted to save the deceased, then he would have suffered some burn injuries. But as per the above details of injuries, there was not even a single burn injury found on the body of the accused Mukesh. These injuries were such that one could suffer only if he was struggling or fighting with another person, as then alone could he suffer such bruises or minor cuts. [pic]Absence of any cooking material in the kitchen is another very important circumstance which would belie the stand of the accused.” 19. Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother and sister’s husband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.20. We have gone though the evidence both oral and documentary brought on record. We have also analysed and scrutinized the evidence and the material available on record. In our considered opinion, the High Court has correctly recorded the finding based on evidence and found the appellant guilty of commission of offence. The judgment of acquittal passed by the trial court is wholly perverse and based on conjecture and surmises.21. | 0[ds]34. Furthermore, the entire conduct of the accused is such as to lead to only one plausible conclusion i.e. all the accused together had caused the death of the deceased. The arguments of the defence are strange because if the accused had attempted to save the deceased, then he would have suffered some burn injuries. But as per the above details of injuries, there was not even a single burn injury found on the body of the accused Mukesh. These injuries were such that one could suffer only if he was struggling or fighting with another person, as then alone could he suffer such bruises or minor cuts. [pic]Absence of any cooking material in the kitchen is another very important circumstance which would belie the stand of the accused.Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother andhusband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.20. We have gone though the evidence both oral and documentary brought on record. We have also analysed and scrutinized the evidence and the material available on record. In our considered opinion, the High Court has correctly recorded the finding based on evidence and found the appellant guilty of commission of offence. The judgment of acquittal passed by the trial court is wholly perverse and based on conjecture and surmises. | 0 | 4,487 | 457 | ### 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:
word “shall” thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by [pic]her husband or any relative of her husband in connection with any demand of dowry.” 17. Section 113A of the Evidence Act and Section 107, IPC have also been considered by this Court in the case of Thanu Ram vs. State of M.P., (2010) 10 SCC 353 , this Court held as under:- “25. In our view, the element of instigation as understood within the meaning of Section 107 IPC is duly satisfied in this case in view of the provisions of Section 113-A of the Evidence Act, 1872, which provides for a presumption to be arrived at regarding abetment of suicide by a married woman and certain criteria are also laid down therein. The first criterion is that such suicide must have been committed within 7 years from the date of the victim’s marriage. Since Hirabai committed suicide in the 4th year of her marriage, such condition is duly satisfied. The second condition is that the husband or such relative of the husband had subjected the victim to cruelty which led to the commission of suicide by the victim. Section 113-A indicates that in such circumstances, the court may presume, having regard to all the circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” [pic] 18. In the case of Rajesh Bhatnagar vs. State of Uttarakhand, (2012) 7 SCC 91 , this Court held as under:- “15. Before we examine the merit or otherwise of this contention, it will be useful to state the basic ingredients of Section 304-B IPC. The requirement of Section 304-B is that the death of a woman be caused by burns, bodily injury or otherwise than in normal circumstances, within seven years of her marriage. Further, it should be shown that soon before her death, she was subjected to cruelty or harassment by her husband or her husband’s family or relatives and thirdly, that such harassment should be in relation to a demand for dowry. Once these three ingredients are satisfied, her death shall be treated as a “dowry death” and once a “dowry death” occurs, such husband or relative shall be presumed to have caused her death. Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is not only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law.xxxxxxx34. Furthermore, the entire conduct of the accused is such as to lead to only one plausible conclusion i.e. all the accused together had caused the death of the deceased. The arguments of the defence are strange because if the accused had attempted to save the deceased, then he would have suffered some burn injuries. But as per the above details of injuries, there was not even a single burn injury found on the body of the accused Mukesh. These injuries were such that one could suffer only if he was struggling or fighting with another person, as then alone could he suffer such bruises or minor cuts. [pic]Absence of any cooking material in the kitchen is another very important circumstance which would belie the stand of the accused.” 19. Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother and sister’s husband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.20. We have gone though the evidence both oral and documentary brought on record. We have also analysed and scrutinized the evidence and the material available on record. In our considered opinion, the High Court has correctly recorded the finding based on evidence and found the appellant guilty of commission of offence. The judgment of acquittal passed by the trial court is wholly perverse and based on conjecture and surmises.21.
### Response:
0
### Explanation:
34. Furthermore, the entire conduct of the accused is such as to lead to only one plausible conclusion i.e. all the accused together had caused the death of the deceased. The arguments of the defence are strange because if the accused had attempted to save the deceased, then he would have suffered some burn injuries. But as per the above details of injuries, there was not even a single burn injury found on the body of the accused Mukesh. These injuries were such that one could suffer only if he was struggling or fighting with another person, as then alone could he suffer such bruises or minor cuts. [pic]Absence of any cooking material in the kitchen is another very important circumstance which would belie the stand of the accused.Admittedly, the marriage was solemnized on 16.4.1989 and the incident took place on 16.3.1990 i.e. within a period of eleven months only. From the evidence it reveals that the altercation between the appellant and the deceased started three months before the incident when there was no indication of the deceased becoming pregnant after marriage. According to the prosecution, before the marriage of the deceased with the appellant, negotiations were held with regard to the demand of dowry in the form of cash as well as gold and silver ornaments. It further reveals that part of the dowry amount was given to the appellant before marriage and further amount was given at the time of marriage. The prosecution further led evidence that the appellant was in the habit of consuming liquor and further the deceased had been subjected to physical and mental cruelty over certain issues including demand of balance dowry. The deceased being not in a position to bear more torture and cruelty pertaining to demand of dowry committed suicide by setting herself on fire. The sister, brother andhusband of the deceased along with other witnesses had been examined as PWs 1, 2 and 3, who have consistently deposed about the demand and acceptance of dowry and also about the deceased being subjected to mental and physical cruelty by the appellant in their house.20. We have gone though the evidence both oral and documentary brought on record. We have also analysed and scrutinized the evidence and the material available on record. In our considered opinion, the High Court has correctly recorded the finding based on evidence and found the appellant guilty of commission of offence. The judgment of acquittal passed by the trial court is wholly perverse and based on conjecture and surmises.
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M. N. Dodamani & Ors Vs. U. S. D. Walikar (Dead) By Legal Representatives &Ors | the transaction between the appellants predecessors and Krishnaji and as such entitled to the protection of section 25(ii). This order of the High Court was made on January 25, 1963. At this stage we may mention that our attention was drawn to an order made in the same matter by the High Court on January 31, 1962, which is reported in 1962 Mysore Law Journal 682, that shows that the same learned Judge had set aside the order of the appellate court and restored that of the trial court. Counsel for both sides appeared to think that the order made by the High Court in 1962 must have been set aside later on review though neither of them was able to produce the order by which the 1962 order had been set aside. However both learned counsel agreed that for the purpose of this appeal it is the order of the High Court made on January 25, 1963 that need be considered. That the 1963 order held the field would be apparent from the fact that the case was reconsidered by the trial court as directed by the aforesaid order. The trial court on hearing the matter after remand dismissed the application under section 4 on the finding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction. The lower appellate court reversed this decision. The purchasers then moved the High Court in revision from the order passed by the appellate court. The High Court by the impugned order set aside the order of the appellate court and restored that of the trial court agreeing with the trial court that the purchasers had no notice of the real nature of the transaction of 1927.2. Section 24 of the Bombay Agricultural Debtors Relief Act, 1947 empowers the court to declare any transfer of land by a person whose debts are being adjusted under this Act purporting to be a sale, to be a mortgage if the court was satisfied that the circumstances connected with the transfer showed it to be in the nature of a mortgage. Section 25(ii) provides that nothing in section 24 shall apply to "any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before the 15th day of February, 1939". The document evidencing the transfer of the plots to Krishnaji in 1927 is described as a "sale deed" and contains a statement that the vendors "have absolutely sold both the said lands to Krishnaji" and that the "entire ownership" was Krishnajis "alone". It is also said that possession of the lands has also been given to Krishnaji. The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927. But the High Court also held that the notice contemplated in section 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)". It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay. We are of the view that section 25(ii) does not exclude constructive notice. However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927. It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice. Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Court says:"It will be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody. If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue further enquiries."3. Mr. S. S. Javali appearing for the appellants contends that the fact that the lands in question were transferred for a smaller amount in 1932 and 1935 than the price Krishnaji had paid for them in 1927 was a circumstance that should have put the transferees on enquiry and that if reasonable enquiries had been made they would have had knowledge of the real nature of the transaction o f 1927. The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the trans action of 1927 was really a mortgage. As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935. Ramappa in his deposition said that he paid Rs.400/- for the land as it was "fallow", and th at if there were no weeds the price would have been Rs. 600/-. As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court. The record of rights also does not contain any indication that the transaction of 1927 was in the nature of a mortgage. The evidence discloses that Krishnappa put the transferees in possession of the lands in question. There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors-in-interest of the appellants in 1927. | 0[ds]The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927. But the High Court also held that the notice contemplated in section 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)". It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay. We are of the view that section 25(ii) does not exclude constructive notice. However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927. It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice. Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Courtwill be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody. If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue furtherfact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the trans action of 1927 was really a mortgage. As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935. Ramappa in his deposition said that he paid Rs.400/- for the land as it was "fallow", and th at if there were no weeds the price would have been Rs. 600/-. As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court. The record of rights also does not contain any indication that the transaction of 1927 was in the nature of a mortgage. The evidence discloses that Krishnappa put the transferees in possession of the lands in question. There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors-in-interest of the appellants in 1927. | 0 | 1,447 | 516 | ### 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 transaction between the appellants predecessors and Krishnaji and as such entitled to the protection of section 25(ii). This order of the High Court was made on January 25, 1963. At this stage we may mention that our attention was drawn to an order made in the same matter by the High Court on January 31, 1962, which is reported in 1962 Mysore Law Journal 682, that shows that the same learned Judge had set aside the order of the appellate court and restored that of the trial court. Counsel for both sides appeared to think that the order made by the High Court in 1962 must have been set aside later on review though neither of them was able to produce the order by which the 1962 order had been set aside. However both learned counsel agreed that for the purpose of this appeal it is the order of the High Court made on January 25, 1963 that need be considered. That the 1963 order held the field would be apparent from the fact that the case was reconsidered by the trial court as directed by the aforesaid order. The trial court on hearing the matter after remand dismissed the application under section 4 on the finding that the purchasers were bona fide transferees for value without notice of the real nature of the original transaction. The lower appellate court reversed this decision. The purchasers then moved the High Court in revision from the order passed by the appellate court. The High Court by the impugned order set aside the order of the appellate court and restored that of the trial court agreeing with the trial court that the purchasers had no notice of the real nature of the transaction of 1927.2. Section 24 of the Bombay Agricultural Debtors Relief Act, 1947 empowers the court to declare any transfer of land by a person whose debts are being adjusted under this Act purporting to be a sale, to be a mortgage if the court was satisfied that the circumstances connected with the transfer showed it to be in the nature of a mortgage. Section 25(ii) provides that nothing in section 24 shall apply to "any bona fide transferee for value without notice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before the 15th day of February, 1939". The document evidencing the transfer of the plots to Krishnaji in 1927 is described as a "sale deed" and contains a statement that the vendors "have absolutely sold both the said lands to Krishnaji" and that the "entire ownership" was Krishnajis "alone". It is also said that possession of the lands has also been given to Krishnaji. The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927. But the High Court also held that the notice contemplated in section 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)". It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay. We are of the view that section 25(ii) does not exclude constructive notice. However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927. It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice. Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Court says:"It will be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody. If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue further enquiries."3. Mr. S. S. Javali appearing for the appellants contends that the fact that the lands in question were transferred for a smaller amount in 1932 and 1935 than the price Krishnaji had paid for them in 1927 was a circumstance that should have put the transferees on enquiry and that if reasonable enquiries had been made they would have had knowledge of the real nature of the transaction o f 1927. The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the trans action of 1927 was really a mortgage. As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935. Ramappa in his deposition said that he paid Rs.400/- for the land as it was "fallow", and th at if there were no weeds the price would have been Rs. 600/-. As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court. The record of rights also does not contain any indication that the transaction of 1927 was in the nature of a mortgage. The evidence discloses that Krishnappa put the transferees in possession of the lands in question. There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors-in-interest of the appellants in 1927.
### Response:
0
### Explanation:
The High Court found that the purchasers from Krishnaji had no "actual knowledge or notice" of the real nature of the transaction in 1927. But the High Court also held that the notice contemplated in section 25(ii) was "actual notice" and that "constructive notice was clearly beyond the contemplation of section 25(ii)". It seems to us that construing the notice referred to in section 25(ii) as actual notice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay. We are of the view that section 25(ii) does not exclude constructive notice. However on the facts of the case it appears that the transferees had no notice, actual or constructive, of the real nature of the transaction of 1927. It has been found that they had no actual notice; the High Court appears to have also found that they had no constructive notice. Referring to the provision of section 25(ii) requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Courtwill be seen that the reference is to a period anterior to the coming into force of the Act, a period therefore during which the special provisions of the Act could not have been within the contemplation of anybody. If those provisions were not in contemplation it is impossible to postulate a situation where any given circumstance could be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue furtherfact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the trans action of 1927 was really a mortgage. As pointed out by the High Court, the Act of 1947 could not have been within the contemplation of anyone in 1932 or 1935. Ramappa in his deposition said that he paid Rs.400/- for the land as it was "fallow", and th at if there were no weeds the price would have been Rs. 600/-. As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial court. The record of rights also does not contain any indication that the transaction of 1927 was in the nature of a mortgage. The evidence discloses that Krishnappa put the transferees in possession of the lands in question. There was therefore, no such occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors-in-interest of the appellants in 1927.
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Sahib Ram Etc Vs. The Financial Commissioner, Punjab & Others | any such limitation into cl. (i). Clause (iii) dealing with the third category of tenants admittedly relates to a tenant evicted from the property even before the date of the Act and who was not in possession on the day when the Act came into force. But, nevertheless, if such tenants had been in continuous possession for six years at the time of their ejectment which must be before the date of the Act, they are entitled to purchase the property, but that right must be exercised within a period of one year from the date of the commencement of the Act. If Mr. Iyengars contention that the tenants in category (i) should have completed the continuous period of six years on the date of the Act, is correct such tenants and tenants coming under category (iii) will be on a par in that both would have completed their period of six years before the date of the Act. Nevertheless in the case of tenants coming under category (iii), Legislature has specifically stated that they must exercise their right of purchase within a period of one year from the date of the Act whereas in the case of tenants coming under cl. (i) they could exercise the right at any time ; This itself clearly indicates that the tenants coming under category (i) are entirely different from the tenants coming under category (iii If both types of tenants coming under clause (i) and clause (iii) stand on the same footing the position would be that both would have completed the period of continuous occupation of six years prior to the Act and the Legislature would have provided that both should exercise the right of purchase within a period of one year. The distinction made regarding the period within which these two categories can exercise their right, clearly indicates the intention of the Legislature to the contrary. It stands to reason that the tenants coming under clauses (i) and (ii) who are in actual possession of the land have been given the option either to continue as tenants and pay rent or to exercise their right to purchase the land at any time. There is no question in their case of there being any timelag or doubt because, being in possession no other persons right will normally be affected; whereas in the case of a tenant coming under cl. (iii), he has already gone out of the land and therefore the Legislature has specifically provided a very short period of one year from the date of the Act for exercising, if he so chooses, his right to purchase the land provided he satisfies the other conditions mentioned in the section. The Legislature did not want the position to be kept nebulous and doubtful in respect of such a person who was not in possession as a tenant on the date of the Act. While coming to a tenant who satisfies the requirements of cl. (iii) of S. 18 (1) the Legislature has taken care to see that those types of tenants are made to take a decision to purchase the land within the shortest possible time so that other peoples rights may not be jeopardized.32. Nor is there any warrant for the contention of Mr. Iyengar that the person who claims the right under cl. (i) should have been a tenant on April 15, 1953. So far as we could see, there is no prohibition under the Act placing any restriction against the right of the landowner creating new tenancies after the date of the Act. In fact the second proviso to S. 9-A clearly indicates to the contrary. It deals with the contingency of tenancy coming into force after the commencement of the Act.33. Section 18 (1) (i) gives a right to a tenant to purchase the land; and that right has to be examined when an application under Section 18 is made and cannot be denied on the ground that he was not a tenant for more than six years on April 15, l953. There is no limitation placed under d (i) of Section 18 (l) that the tenant who exercises his right should be a tenant on the date of the Act or that he should have completed the period of six years on April 15, 1953 and there is no warrant for reading in Section 18 (1) (i) clauses which it does not contain. It is enough if the continuous period of six years has been completed on the date when the tenant files the application for purchase of the land.34. We were referred to three decisions: Ganpat v. Jagmal, (1963) 65 Pun LR 652; Amar Singh v. State of Punjab, ILR (1967) 2 Punj and Har 120, and Mam Raj v. State of Punjab, ILR {1969) 2 Punj and Har 680 = (AIR 1970 Punj and Har 23). In the first decision the question was whether a transfer by a landowner in excess of the reserved area has to be ignored when the rights of a tenant under section 18 are being considered. In the second and third decisions the question was whether an order for purchase passed in favour of a tenant under Section 18 can be ignored by the Collector when exercising his functions under Section 10-A of the Act. In none of the decisions the points now decided by us came up for consideration directly and therefore it is not necessary to deal with those decisions in detail.35. To conclude we are of opinion -that in order to claim a right of purchase as against the landowner under Section 18 (1) (i) of the Act, the minimum period of six years should have been completed at the time when the application for purchase by the tenant is made and it is not necessary that he should have been a tenant of the land on April 15, 1953. Provided the other conditions are satisfied, such a tenant will be entitled to purchase the land. | 0[ds]29. In our opinion, having due regard to the scheme of the Act, there is no warrant for importing any such restriction in Section 18 (l) of the Act If the intention of the Legislature was that the tenant under S. 18 (1) (i) should have been in continuous occupation for a minimum period of six years on the date of the Act, it would have been specifically so provided for in the said clause. | 0 | 6,116 | 90 | ### 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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any such limitation into cl. (i). Clause (iii) dealing with the third category of tenants admittedly relates to a tenant evicted from the property even before the date of the Act and who was not in possession on the day when the Act came into force. But, nevertheless, if such tenants had been in continuous possession for six years at the time of their ejectment which must be before the date of the Act, they are entitled to purchase the property, but that right must be exercised within a period of one year from the date of the commencement of the Act. If Mr. Iyengars contention that the tenants in category (i) should have completed the continuous period of six years on the date of the Act, is correct such tenants and tenants coming under category (iii) will be on a par in that both would have completed their period of six years before the date of the Act. Nevertheless in the case of tenants coming under category (iii), Legislature has specifically stated that they must exercise their right of purchase within a period of one year from the date of the Act whereas in the case of tenants coming under cl. (i) they could exercise the right at any time ; This itself clearly indicates that the tenants coming under category (i) are entirely different from the tenants coming under category (iii If both types of tenants coming under clause (i) and clause (iii) stand on the same footing the position would be that both would have completed the period of continuous occupation of six years prior to the Act and the Legislature would have provided that both should exercise the right of purchase within a period of one year. The distinction made regarding the period within which these two categories can exercise their right, clearly indicates the intention of the Legislature to the contrary. It stands to reason that the tenants coming under clauses (i) and (ii) who are in actual possession of the land have been given the option either to continue as tenants and pay rent or to exercise their right to purchase the land at any time. There is no question in their case of there being any timelag or doubt because, being in possession no other persons right will normally be affected; whereas in the case of a tenant coming under cl. (iii), he has already gone out of the land and therefore the Legislature has specifically provided a very short period of one year from the date of the Act for exercising, if he so chooses, his right to purchase the land provided he satisfies the other conditions mentioned in the section. The Legislature did not want the position to be kept nebulous and doubtful in respect of such a person who was not in possession as a tenant on the date of the Act. While coming to a tenant who satisfies the requirements of cl. (iii) of S. 18 (1) the Legislature has taken care to see that those types of tenants are made to take a decision to purchase the land within the shortest possible time so that other peoples rights may not be jeopardized.32. Nor is there any warrant for the contention of Mr. Iyengar that the person who claims the right under cl. (i) should have been a tenant on April 15, 1953. So far as we could see, there is no prohibition under the Act placing any restriction against the right of the landowner creating new tenancies after the date of the Act. In fact the second proviso to S. 9-A clearly indicates to the contrary. It deals with the contingency of tenancy coming into force after the commencement of the Act.33. Section 18 (1) (i) gives a right to a tenant to purchase the land; and that right has to be examined when an application under Section 18 is made and cannot be denied on the ground that he was not a tenant for more than six years on April 15, l953. There is no limitation placed under d (i) of Section 18 (l) that the tenant who exercises his right should be a tenant on the date of the Act or that he should have completed the period of six years on April 15, 1953 and there is no warrant for reading in Section 18 (1) (i) clauses which it does not contain. It is enough if the continuous period of six years has been completed on the date when the tenant files the application for purchase of the land.34. We were referred to three decisions: Ganpat v. Jagmal, (1963) 65 Pun LR 652; Amar Singh v. State of Punjab, ILR (1967) 2 Punj and Har 120, and Mam Raj v. State of Punjab, ILR {1969) 2 Punj and Har 680 = (AIR 1970 Punj and Har 23). In the first decision the question was whether a transfer by a landowner in excess of the reserved area has to be ignored when the rights of a tenant under section 18 are being considered. In the second and third decisions the question was whether an order for purchase passed in favour of a tenant under Section 18 can be ignored by the Collector when exercising his functions under Section 10-A of the Act. In none of the decisions the points now decided by us came up for consideration directly and therefore it is not necessary to deal with those decisions in detail.35. To conclude we are of opinion -that in order to claim a right of purchase as against the landowner under Section 18 (1) (i) of the Act, the minimum period of six years should have been completed at the time when the application for purchase by the tenant is made and it is not necessary that he should have been a tenant of the land on April 15, 1953. Provided the other conditions are satisfied, such a tenant will be entitled to purchase the land.
### Response:
0
### Explanation:
29. In our opinion, having due regard to the scheme of the Act, there is no warrant for importing any such restriction in Section 18 (l) of the Act If the intention of the Legislature was that the tenant under S. 18 (1) (i) should have been in continuous occupation for a minimum period of six years on the date of the Act, it would have been specifically so provided for in the said clause.
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Shibu Metal Works Vs. Their Workmen | which the workmen undertook not to raise any dispute for five years except in a case of victimization. The preliminary objection was rejected by the industrial tribunal on the ground that there was no evidence to show that the workmen who negotiated with the management for extending the agreement had the authority of the other workmen of the establishment as required by rule 58 (2)(b) of the industrial disputes (Punjab) Rules. On the merits of the reference the industrial tribunal decided item 1 regarding Hari Rams victimization in favour of the management With regard to the other two items, viz., abolition of contract labour and the grant of casual leave, the industrial tribunal held that the management should abolish the contract labour system within a period of three months from the date the award came into operation and that management should grant six days casual leave with wages in a year to the workmen. 5. On behalf of the appellant it was contended, in the first place, that the industrial tribunal was in error in holding that the agreement Ex. R. 1, commencing with effect from 1 April, 1957 was not extended for another five years until 31 March, 1967 by a second agreement, Ex. R. 2. Rule 58(2)(b) of the Industrial Disputes (Punjab) Rules provides that the settlement shall be signed in case of workmen either by the president and secretary of a trade union of workmen, or by five representatives of the workmen, duly authorized in this behalf at a meeting of the workmen held for purpose. The case of the management was that a meeting of the workmen was actually held and in that meeting they authorized the five workmen to sign the settlement, Ex. R. 2. Reliance was also placed on the evidence of R.W. 2 Jai Kumar. But the industrial tribunal has rejected the oral evidence of R.W. 2, and held that there was no proof that the five workman to were authorized by the other workmen in accordance with rule 58(2)(b) to negotiate with the management and extend the period of settlement. The industrial tribunal has commented that the evidence of R.W. 2 was not supported by any documentary evidence and the proceedings of the alleged meeting of the workmen were were not produced. The industrial tribunal accordingly rejected the preliminary objection that the reference was bad in law because of previous agreement. The finding of the industrial tribunal on this point is essentially a question of fact and it is not open to the appellant to challenge this finding in appeal.It was next contended on behalf of the appellant that it was not possible to completely abolish the system of contract labour because the work of the appellant-factory was always fluctuating. It was submitted that contract labour was in a very advantageous position as compared to regular employees of the appellant-factory as contract labour could do various jobs in different factories and at high rates of wages. It was contended that the industrial tribunal was not justified in asking the management to abolish the system of contract labour We do not think there is any warrant for this submission The case of the workmen before the tribunal was that the chhilai, lathe and press work is of a permanent nature and is part and parcel of manufacturing process of the goods of the industrial concern It is part and parcel of manufacturing process of the good of the industrial concern. It is contended on behalf of the workmen that the labour engaged by contract was deprived of legal facilities which the other workman of the factory enjoyed under various statutes and the engagement of contract labour for these three sections of the factory was an unfair labour practice. The tribunal has examined the evidence adduced by the parties on this point and recorded the finding that the work in all three section was of a permanent nature and not intermittent or temporary and that the system of contract labour should be abolished. In view of this finding of the industrial tribunal we are of the opinion that there was no justification for the management to employ contract labour for the sections of chhilai lathe and press. Reference should be made in this connexion to the following observation made in the report of Royal Commission on Labour in India :- "Whatever the merits of the system in primitive times, it is now desirable if the management has to discharge completely the complex responsibilities laid down upon it by law and by equity, that the manager should have full control over the selection, hours of work and payment of the workers."The same opinion has been affirmed by several labour enquiry committees appointed in different States. In Standard Vacuum Refining Company of India, Ltd. v. Their Workmen [1960 - II L.L.J. 233] this Court has expressed the view that in dealing with the dispute on its merits it may be relevant to bear in mind that industrial adjudication generally does not encourage the employment of contract labour in modern times, but the question in a given case should not merely be decided on theoretical or academic considerations but also on the terms and conditions on which contract labour was employed in the particular case and the grievance made by the employees in respect thereof. In the present case, the industrial tribunal has found that contract labour was being employed for work which was of a permanent nature and it was part of the manufacturing process of the goods manufactured in the factory. The matter would have been different if the work had been of intermittent or temporary nature or so little in extent that it would not be possible to employ whole time workmen for the purpose. In these circumstances, we see no reason for interfering with the award of the tribunal on this point. On behalf of the appellant the findings of the tribunal on the other issues were not challenged in this appeal. 6. | 0[ds]The industrial tribunal accordingly rejected the preliminary objection that the reference was bad in law because of previous agreement. The finding of the industrial tribunal on this point is essentially a question of fact and it is not open to the appellant to challenge this finding in appeahe tribunal has examined the evidence adduced by the parties on this point and recorded the finding that the work in all three section was of a permanent nature and not intermittent or temporary and that the system of contract labour should be abolished. In view of this finding of the industrial tribunal we are of the opinion that there was no justification for the management to employ contract labour for the sections of chhilai lathe and pressIn the present case, the industrial tribunal has found that contract labour was being employed for work which was of a permanent nature and it was part of the manufacturing process of the goods manufactured in the factory. The matter would have been different if the work had been of intermittent or temporary nature or so little in extent that it would not be possible to employ whole time workmen for the purpose. In these circumstances, we see no reason for interfering with the award of the tribunal on this point. On behalf of the appellant the findings of the tribunal on the other issues were not challenged in this appeal. | 0 | 1,534 | 247 | ### 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:
which the workmen undertook not to raise any dispute for five years except in a case of victimization. The preliminary objection was rejected by the industrial tribunal on the ground that there was no evidence to show that the workmen who negotiated with the management for extending the agreement had the authority of the other workmen of the establishment as required by rule 58 (2)(b) of the industrial disputes (Punjab) Rules. On the merits of the reference the industrial tribunal decided item 1 regarding Hari Rams victimization in favour of the management With regard to the other two items, viz., abolition of contract labour and the grant of casual leave, the industrial tribunal held that the management should abolish the contract labour system within a period of three months from the date the award came into operation and that management should grant six days casual leave with wages in a year to the workmen. 5. On behalf of the appellant it was contended, in the first place, that the industrial tribunal was in error in holding that the agreement Ex. R. 1, commencing with effect from 1 April, 1957 was not extended for another five years until 31 March, 1967 by a second agreement, Ex. R. 2. Rule 58(2)(b) of the Industrial Disputes (Punjab) Rules provides that the settlement shall be signed in case of workmen either by the president and secretary of a trade union of workmen, or by five representatives of the workmen, duly authorized in this behalf at a meeting of the workmen held for purpose. The case of the management was that a meeting of the workmen was actually held and in that meeting they authorized the five workmen to sign the settlement, Ex. R. 2. Reliance was also placed on the evidence of R.W. 2 Jai Kumar. But the industrial tribunal has rejected the oral evidence of R.W. 2, and held that there was no proof that the five workman to were authorized by the other workmen in accordance with rule 58(2)(b) to negotiate with the management and extend the period of settlement. The industrial tribunal has commented that the evidence of R.W. 2 was not supported by any documentary evidence and the proceedings of the alleged meeting of the workmen were were not produced. The industrial tribunal accordingly rejected the preliminary objection that the reference was bad in law because of previous agreement. The finding of the industrial tribunal on this point is essentially a question of fact and it is not open to the appellant to challenge this finding in appeal.It was next contended on behalf of the appellant that it was not possible to completely abolish the system of contract labour because the work of the appellant-factory was always fluctuating. It was submitted that contract labour was in a very advantageous position as compared to regular employees of the appellant-factory as contract labour could do various jobs in different factories and at high rates of wages. It was contended that the industrial tribunal was not justified in asking the management to abolish the system of contract labour We do not think there is any warrant for this submission The case of the workmen before the tribunal was that the chhilai, lathe and press work is of a permanent nature and is part and parcel of manufacturing process of the goods of the industrial concern It is part and parcel of manufacturing process of the good of the industrial concern. It is contended on behalf of the workmen that the labour engaged by contract was deprived of legal facilities which the other workman of the factory enjoyed under various statutes and the engagement of contract labour for these three sections of the factory was an unfair labour practice. The tribunal has examined the evidence adduced by the parties on this point and recorded the finding that the work in all three section was of a permanent nature and not intermittent or temporary and that the system of contract labour should be abolished. In view of this finding of the industrial tribunal we are of the opinion that there was no justification for the management to employ contract labour for the sections of chhilai lathe and press. Reference should be made in this connexion to the following observation made in the report of Royal Commission on Labour in India :- "Whatever the merits of the system in primitive times, it is now desirable if the management has to discharge completely the complex responsibilities laid down upon it by law and by equity, that the manager should have full control over the selection, hours of work and payment of the workers."The same opinion has been affirmed by several labour enquiry committees appointed in different States. In Standard Vacuum Refining Company of India, Ltd. v. Their Workmen [1960 - II L.L.J. 233] this Court has expressed the view that in dealing with the dispute on its merits it may be relevant to bear in mind that industrial adjudication generally does not encourage the employment of contract labour in modern times, but the question in a given case should not merely be decided on theoretical or academic considerations but also on the terms and conditions on which contract labour was employed in the particular case and the grievance made by the employees in respect thereof. In the present case, the industrial tribunal has found that contract labour was being employed for work which was of a permanent nature and it was part of the manufacturing process of the goods manufactured in the factory. The matter would have been different if the work had been of intermittent or temporary nature or so little in extent that it would not be possible to employ whole time workmen for the purpose. In these circumstances, we see no reason for interfering with the award of the tribunal on this point. On behalf of the appellant the findings of the tribunal on the other issues were not challenged in this appeal. 6.
### Response:
0
### Explanation:
The industrial tribunal accordingly rejected the preliminary objection that the reference was bad in law because of previous agreement. The finding of the industrial tribunal on this point is essentially a question of fact and it is not open to the appellant to challenge this finding in appeahe tribunal has examined the evidence adduced by the parties on this point and recorded the finding that the work in all three section was of a permanent nature and not intermittent or temporary and that the system of contract labour should be abolished. In view of this finding of the industrial tribunal we are of the opinion that there was no justification for the management to employ contract labour for the sections of chhilai lathe and pressIn the present case, the industrial tribunal has found that contract labour was being employed for work which was of a permanent nature and it was part of the manufacturing process of the goods manufactured in the factory. The matter would have been different if the work had been of intermittent or temporary nature or so little in extent that it would not be possible to employ whole time workmen for the purpose. In these circumstances, we see no reason for interfering with the award of the tribunal on this point. On behalf of the appellant the findings of the tribunal on the other issues were not challenged in this appeal.
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State of Mysore and Another Vs. Mysore Spinning and Manufacturing Company, Limited and Another | the words of rule 11(7)(ii) - "he shall pay in full the amount or amounts collected by him by way of tax or taxes to the Government .........".The appeal originally came on before a Division Bench of this Court when the arguments just now summarised were urged and it was then submitted on behalf of the respondents, that if section 11(2) were construed in the manner contended by the learned counsel for the appellants, the direction to pay over to the Government, money belonging to the dealer which could not lawfully be and was not in fact charged to tax under the Act would violate the fundamental rights guaranteed by Articles 19(1)(f) and 31 of the Constitution. By reason of this contention being raised the appeals were directed to be posted before a Constitution Bench and that is how these appeals come to be heard by us.After arguments as regards the proper interpretation of the words "by way of tax under this Act" occurring in sub-sections (1) and (2) of section 11 had been advanced by the learned counsel on either side on the lines above indicated, it was realised that on the facts of all these cases, there was no "collection" at all, whether "by way of tax" or otherwise, so as to bring the amounts received and held by the respondents within the scope of section 11. We have already set out the questions referred, which would clearly indicate that the amounts were received by the Cement Marketing Co. and by the Mysore Spinning and Manufacturing Co. and the Minerva Mills Ltd. only as "a deposit" to cover a possible contingency of these companies being held liable to pay the tax. That this was the real nature of the transaction was never in dispute. Indeed even the Commissioner of Sales Tax in making the reference in the three cases made it clear that the amounts were received by the companies on the definite understanding and condition that they were to be held only "as deposits" to be refunded when the company in question was held not liable to include the relevant sales in its taxable turnover. The construction on which the Sales Tax Authorities proceeded was that the Act made no difference between one type of receipt and another, and that any receipt of money by a dealer from the purchaser was a "collection by way of tax" within section 11(2) of the Act, provided it had some relation to sales tax, and that it mattered not that the receipt was merely a deposit by the payer carried to suspense account, the amount being received on the express undertaking and definite condition that the same would be refunded in the event of the dealer being held not liable to sales tax on the transaction in regard to which the "deposit" was made. We are unable to agree in this construction of the expression "collection" occurring in section 11(2) of the Act. Where an amount is received merely by way of deposit, on the express understanding or undertaking as in these cases, the company held the money as a mere custodian, and on the fulfilment of the condition became a trustee for the depositor. It is sufficient to state that when once the tax authorities determined that the proceeds of the sales in question were not within the taxable turnover of the company, the beneficial ownership became vested in the depositors and the company ceased to have any right to continue to hold the moneys. The fact that the physical control of the moneys passed from the "depositor" to the "dealer" did not render the receipt a "collection" within section 11(2) of the Act.We should not be understood as saying that collections by a dealer from a purchaser of amounts not lawfully demandable by him are not "collections" within section 11, merely because the purchaser could in law make a claim for refund and enforce that right in appropriate proceedings. But such a case is far removed from the ones before us, where the payment by the purchaser was conditional and made on an express contract that the sum would be refunded in the contingency of the dealer being held not to be assessable in respect of the relevant turnover. On the facts of these appeals we are unable to hold that there has been any "collection" by way of tax of any amount under section 11(2) of the Mysore Sales Tax Act, 1948.So far we have been dealing with the facts of the cases in which "references" were made to the Court. In Civil Appeal 75 of 1957 which is against the order of the High Court in Writ Petition No. 39 of 1954 there was no "reference". Facts exactly similar to those in the other cases and the circumstances under which deposits were obtained and retained by the company were set out in the affidavit in support of the petition. The State filed no counter-affidavit challenging the correctness of the assertions made in the petition and the High Court proceeded on the basis that there was no difference on the facts between the cases covered in the references and those in the writ petition. We consider, therefore, that the facts in Civil Appeal 75 of 1957 are not substantially different.In view of this conclusion, we consider it proper not to embark on an investigation of the proper construction of section 11(1) and (2) of the Act and the sustainability of the rival contentions urged before us on this matter. Nor do we consider it necessary or proper to deal with the soundness or otherwise of the constitutional objections which have been put forward to the demand by the State, to amounts "collected by way of tax" if that were to include collections in respect of sale-transactions not charged to tax under the Act. We consider it desirable to reserve the determination of these questions to an occasion when they properly arise and have necessarily to be decided. | 0[ds]After arguments as regards the proper interpretation of the words "by way of tax under this Act" occurring in sub-sections (1) and (2) of section 11 had been advanced by the learned counsel on either side on the lines above indicated, it was realised that on the facts of all these cases, there was no "collection" at all, whether "by way of tax" or otherwise, so as to bring the amounts received and held by the respondents within the scope of section 11. We have already set out the questions referred, which would clearly indicate that the amounts were received by the Cement Marketing Co. and by the Mysore Spinning and Manufacturing Co. and the Minerva Mills Ltd. only as "a deposit" to cover a possible contingency of these companies being held liable to pay the tax. That this was the real nature of the transaction was never in dispute. Indeed even the Commissioner of Sales Tax in making the reference in the three cases made it clear that the amounts were received by the companies on the definite understanding and condition that they were to be held only "as deposits" to be refunded when the company in question was held not liable to include the relevant sales in its taxable turnover. The construction on which the Sales Tax Authorities proceeded was that the Act made no difference between one type of receipt and another, and that any receipt of money by a dealer from the purchaser was a "collection by way of tax" within section 11(2) of the Act, provided it had some relation to sales tax, and that it mattered not that the receipt was merely a deposit by the payer carried to suspense account, the amount being received on the express undertaking and definite condition that the same would be refunded in the event of the dealer being held not liable to sales tax on the transaction in regard to which the "deposit" was made. We are unable to agree in this construction of the expression "collection" occurring in section 11(2) of the Act. Where an amount is received merely by way of deposit, on the express understanding or undertaking as in these cases, the company held the money as a mere custodian, and on the fulfilment of the condition became a trustee for the depositor. It is sufficient to state that when once the tax authorities determined that the proceeds of the sales in question were not within the taxable turnover of the company, the beneficial ownership became vested in the depositors and the company ceased to have any right to continue to hold the moneys. The fact that the physical control of the moneys passed from the "depositor" to the "dealer" did not render the receipt a "collection" within section 11(2) of the Act.We should not be understood as saying that collections by a dealer from a purchaser of amounts not lawfully demandable by him are not "collections" within section 11, merely because the purchaser could in law make a claim for refund and enforce that right in appropriate proceedings. But such a case is far removed from the ones before us, where the payment by the purchaser was conditional and made on an express contract that the sum would be refunded in the contingency of the dealer being held not to be assessable in respect of the relevant turnover. On the facts of these appeals we are unable to hold that there has been any "collection" by way of tax of any amount under section 11(2) of the Mysore Sales Tax Act, 1948.So far we have been dealing with the facts of the cases in which "references" were made to the Court. In Civil Appeal 75 of 1957 which is against the order of the High Court in Writ Petition No. 39 of 1954 there was no "reference". Facts exactly similar to those in the other cases and the circumstances under which deposits were obtained and retained by the company were set out in the affidavit in support of the petition. The State filed no counter-affidavit challenging the correctness of the assertions made in the petition and the High Court proceeded on the basis that there was no difference on the facts between the cases covered in the references and those in the writ petition. We consider, therefore, that the facts in Civil Appeal 75 of 1957 are not substantially different.In view of this conclusion, we consider it proper not to embark on an investigation of the proper construction of section 11(1) and (2) of the Act and the sustainability of the rival contentions urged before us on this matter. Nor do we consider it necessary or proper to deal with the soundness or otherwise of the constitutional objections which have been put forward to the demand by the State, to amounts "collected by way of tax" if that were to include collections in respect of sale-transactions not charged to tax under the Act. We consider it desirable to reserve the determination of these questions to an occasion when they properly arise and have necessarily to be decided. | 0 | 4,660 | 949 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the words of rule 11(7)(ii) - "he shall pay in full the amount or amounts collected by him by way of tax or taxes to the Government .........".The appeal originally came on before a Division Bench of this Court when the arguments just now summarised were urged and it was then submitted on behalf of the respondents, that if section 11(2) were construed in the manner contended by the learned counsel for the appellants, the direction to pay over to the Government, money belonging to the dealer which could not lawfully be and was not in fact charged to tax under the Act would violate the fundamental rights guaranteed by Articles 19(1)(f) and 31 of the Constitution. By reason of this contention being raised the appeals were directed to be posted before a Constitution Bench and that is how these appeals come to be heard by us.After arguments as regards the proper interpretation of the words "by way of tax under this Act" occurring in sub-sections (1) and (2) of section 11 had been advanced by the learned counsel on either side on the lines above indicated, it was realised that on the facts of all these cases, there was no "collection" at all, whether "by way of tax" or otherwise, so as to bring the amounts received and held by the respondents within the scope of section 11. We have already set out the questions referred, which would clearly indicate that the amounts were received by the Cement Marketing Co. and by the Mysore Spinning and Manufacturing Co. and the Minerva Mills Ltd. only as "a deposit" to cover a possible contingency of these companies being held liable to pay the tax. That this was the real nature of the transaction was never in dispute. Indeed even the Commissioner of Sales Tax in making the reference in the three cases made it clear that the amounts were received by the companies on the definite understanding and condition that they were to be held only "as deposits" to be refunded when the company in question was held not liable to include the relevant sales in its taxable turnover. The construction on which the Sales Tax Authorities proceeded was that the Act made no difference between one type of receipt and another, and that any receipt of money by a dealer from the purchaser was a "collection by way of tax" within section 11(2) of the Act, provided it had some relation to sales tax, and that it mattered not that the receipt was merely a deposit by the payer carried to suspense account, the amount being received on the express undertaking and definite condition that the same would be refunded in the event of the dealer being held not liable to sales tax on the transaction in regard to which the "deposit" was made. We are unable to agree in this construction of the expression "collection" occurring in section 11(2) of the Act. Where an amount is received merely by way of deposit, on the express understanding or undertaking as in these cases, the company held the money as a mere custodian, and on the fulfilment of the condition became a trustee for the depositor. It is sufficient to state that when once the tax authorities determined that the proceeds of the sales in question were not within the taxable turnover of the company, the beneficial ownership became vested in the depositors and the company ceased to have any right to continue to hold the moneys. The fact that the physical control of the moneys passed from the "depositor" to the "dealer" did not render the receipt a "collection" within section 11(2) of the Act.We should not be understood as saying that collections by a dealer from a purchaser of amounts not lawfully demandable by him are not "collections" within section 11, merely because the purchaser could in law make a claim for refund and enforce that right in appropriate proceedings. But such a case is far removed from the ones before us, where the payment by the purchaser was conditional and made on an express contract that the sum would be refunded in the contingency of the dealer being held not to be assessable in respect of the relevant turnover. On the facts of these appeals we are unable to hold that there has been any "collection" by way of tax of any amount under section 11(2) of the Mysore Sales Tax Act, 1948.So far we have been dealing with the facts of the cases in which "references" were made to the Court. In Civil Appeal 75 of 1957 which is against the order of the High Court in Writ Petition No. 39 of 1954 there was no "reference". Facts exactly similar to those in the other cases and the circumstances under which deposits were obtained and retained by the company were set out in the affidavit in support of the petition. The State filed no counter-affidavit challenging the correctness of the assertions made in the petition and the High Court proceeded on the basis that there was no difference on the facts between the cases covered in the references and those in the writ petition. We consider, therefore, that the facts in Civil Appeal 75 of 1957 are not substantially different.In view of this conclusion, we consider it proper not to embark on an investigation of the proper construction of section 11(1) and (2) of the Act and the sustainability of the rival contentions urged before us on this matter. Nor do we consider it necessary or proper to deal with the soundness or otherwise of the constitutional objections which have been put forward to the demand by the State, to amounts "collected by way of tax" if that were to include collections in respect of sale-transactions not charged to tax under the Act. We consider it desirable to reserve the determination of these questions to an occasion when they properly arise and have necessarily to be decided.
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### Explanation:
After arguments as regards the proper interpretation of the words "by way of tax under this Act" occurring in sub-sections (1) and (2) of section 11 had been advanced by the learned counsel on either side on the lines above indicated, it was realised that on the facts of all these cases, there was no "collection" at all, whether "by way of tax" or otherwise, so as to bring the amounts received and held by the respondents within the scope of section 11. We have already set out the questions referred, which would clearly indicate that the amounts were received by the Cement Marketing Co. and by the Mysore Spinning and Manufacturing Co. and the Minerva Mills Ltd. only as "a deposit" to cover a possible contingency of these companies being held liable to pay the tax. That this was the real nature of the transaction was never in dispute. Indeed even the Commissioner of Sales Tax in making the reference in the three cases made it clear that the amounts were received by the companies on the definite understanding and condition that they were to be held only "as deposits" to be refunded when the company in question was held not liable to include the relevant sales in its taxable turnover. The construction on which the Sales Tax Authorities proceeded was that the Act made no difference between one type of receipt and another, and that any receipt of money by a dealer from the purchaser was a "collection by way of tax" within section 11(2) of the Act, provided it had some relation to sales tax, and that it mattered not that the receipt was merely a deposit by the payer carried to suspense account, the amount being received on the express undertaking and definite condition that the same would be refunded in the event of the dealer being held not liable to sales tax on the transaction in regard to which the "deposit" was made. We are unable to agree in this construction of the expression "collection" occurring in section 11(2) of the Act. Where an amount is received merely by way of deposit, on the express understanding or undertaking as in these cases, the company held the money as a mere custodian, and on the fulfilment of the condition became a trustee for the depositor. It is sufficient to state that when once the tax authorities determined that the proceeds of the sales in question were not within the taxable turnover of the company, the beneficial ownership became vested in the depositors and the company ceased to have any right to continue to hold the moneys. The fact that the physical control of the moneys passed from the "depositor" to the "dealer" did not render the receipt a "collection" within section 11(2) of the Act.We should not be understood as saying that collections by a dealer from a purchaser of amounts not lawfully demandable by him are not "collections" within section 11, merely because the purchaser could in law make a claim for refund and enforce that right in appropriate proceedings. But such a case is far removed from the ones before us, where the payment by the purchaser was conditional and made on an express contract that the sum would be refunded in the contingency of the dealer being held not to be assessable in respect of the relevant turnover. On the facts of these appeals we are unable to hold that there has been any "collection" by way of tax of any amount under section 11(2) of the Mysore Sales Tax Act, 1948.So far we have been dealing with the facts of the cases in which "references" were made to the Court. In Civil Appeal 75 of 1957 which is against the order of the High Court in Writ Petition No. 39 of 1954 there was no "reference". Facts exactly similar to those in the other cases and the circumstances under which deposits were obtained and retained by the company were set out in the affidavit in support of the petition. The State filed no counter-affidavit challenging the correctness of the assertions made in the petition and the High Court proceeded on the basis that there was no difference on the facts between the cases covered in the references and those in the writ petition. We consider, therefore, that the facts in Civil Appeal 75 of 1957 are not substantially different.In view of this conclusion, we consider it proper not to embark on an investigation of the proper construction of section 11(1) and (2) of the Act and the sustainability of the rival contentions urged before us on this matter. Nor do we consider it necessary or proper to deal with the soundness or otherwise of the constitutional objections which have been put forward to the demand by the State, to amounts "collected by way of tax" if that were to include collections in respect of sale-transactions not charged to tax under the Act. We consider it desirable to reserve the determination of these questions to an occasion when they properly arise and have necessarily to be decided.
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Ramakrishna Ramnath Vs. Presiding Officer, Labour Court, Nagpur and Another | No such issue was even raised before the Labour Court. By issue 7 the appellant contended that the closure was on account of unavoidable circumstances beyond the control of the employer, and issue 6 related to the question as to whether the closure had resulted in the retrenchment of the applicant. These two issues, in our opinion, go to show that the fact of closure was not challenged but an attempt was made to establish that the closure was within the meaning of the proviso to S. 25-FFF(1) or otherwise that the closure was of such a type as did not really amount to retrenchment. 15. It was urged before us that there could be no closure because the appellant was merely protesting against irresponsible Government action and had no intention to close the business permanently.16. In our opinion, the express terms of the notice, preclude such contention. Nobody could say on the 1st July, 1958 that the Government would think fit to withdraw the notification and the first paragraph of the notice shows that under the general power of the employer to close down the business the appellant was informing all concerned that it was proceeding to do so as from 1st July, 1958. The Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been a closure of the business and the text of the notice made the determination of the question quite a simple affair. 17. A fair attempt was made before us to contend that the finding of the Labour Court as to closure was perverse and that it was only a stoppage of work within the meaning of Standing Order No. 11 or a lock-out. As already noted, the question of lock-out was not even mooted when the issues were settled nor was any plea taken that there had been a temporary cessation of work under Standing Order No. 11. By the notice the employer gave the employees to understand that the factory would not function because the Government notification had made the running of it a financial impossibility. 18. In our view decision of this Court in Kalinga Tubes Ltd. v. Their Workmen A.I.R., (1959) S.C.R. 19, does not help the appellant. There the management of the appellant gave notice that as a direct consequence of the continued and sustained illegal activities of the workmen and their preconcerted and pre-meditated acts by illegally keeping confined and forcibly resisting the exit of the staff and officers of the company in the administrative office building for many hours and the consequent refusal by the officers and supervisory staff of the company to carry on their work being reasonably apprehensive of their safety it had become impossible to run the factory. On this plea the company notified that there would be a complete closure of the factory with effect from 3rd October, 1967. There the real question was whether the Explanation to S. 25-FFF was applicable to the facts of the case and the court came to the conclusion that it was not possible to hold that the closure of the undertaking was due to unavoidable circumstances beyond the control of the appellant and as such the appellant was liable to pay compensation under the principal part of sub-s.(1) of S.25-FFF of the Act. On the facts of this case we find ourselves unable to hold that the undertaking was closed down on account of the unavoidable circumstances beyond the control of the employer within the meaning of S. 25-FFF. 19. The contention that a workman has to establish that he had worked for 240 days in all the years for each year the compensation was claimed is without force. It is significant to note that by the first issue before the Labour Court the applicant was only called upon to prove that she had been in continuous service of the appellant for not less than 240 days immediately before the closure. In our opinion the issue had been properly framed. Section 25-FFF lays down that in order that a workman may claim the benefit of the provision he must establish that he has been in continuous service for not less than one year in that undertaking immediately before the closure. As soon as this is done he becomes entitled to notice and compensation in accordance with the provisions of S. 25-F as if he had been retrenched subject to the provisions of sub-s. (2). Sub-section (2) of S. 25-FFF is not applicable to this case. Section 25-F(b) lays down that a workman cannot be retrenched unless he had been paid compensation equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further no such workman can claim the benefit of the provision for compensation unless he can show that he has been in continuous service for not less than one year under the employer. Under S. 25-B a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days is to be deemed to have completed one years service in the industry. Consequently an enquiry has to be made to find out whether the workman had actually worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment. These provisions of law do not show that a workman after satisfying the test under S. 25-B has further to show that he has worked during all the period he has been in the service of the employer for 240 days in the year. However the compensation to be paid to the workman under cl. (b) of S. 25-F is not to exceed his average pay for three months. In the case of the respondent it was found by the Labour Court that she had worked for eight years and but for the proviso to S. 25F she would have been entitled to four months pay. | 0[ds]2. The amount in stake in this appeal is quite an insignificant one but the appeal has been brought as a test case for a number of other similar disputes9. The above provisions of the Act make it clear that the jurisdiction of a Labour Court is not confined to disputes specified in the Second Schedule but the said court has also to perform other functions as may be assigned to it. If there is a closure of a business within the meaning of S. 25FFF, a workman who has been in continuous service for not less than one year in that undertaking immediately before the closure becomes entitled to notice and compensation in accordance with the provisions of S. 25F, as if he or she had been retrenches.13. The concluding portion of the above observations cannot be considered dissociated from the setting in which they were made. As was pointed out in the case of the Central Bank (supra) the examination of the claim under S.33C(2)may in some cases have to be preceded by an enquiry into the existence of the right. A mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court14. In this case the written statement of the appellant before the Labour Court does not even show that there was any plea that there had been af or a. All that was said in paragraph 9 was that "the closure in accordance with the notice, i.e., 1st July, 1958, does not fall within the scope ofS.25FFF of theAct". No such issue was even raised before the Labour Court. By issue 7 the appellant contended that the closure was on account of unavoidable circumstances beyond the control of the employer, and issue 6 related to the question as to whether the closure had resulted in the retrenchment of the applicant. These two issues, in our opinion, go to show that the fact of closure was not challenged but an attempt was made to establish that the closure was within the meaning of the proviso to S.) or otherwise that the closure was of such a type as did not really amount to retrenchment16. In our opinion, the express terms of the notice, preclude such contention. Nobody could say on the 1st July, 1958 that the Government would think fit to withdraw the notification and the first paragraph of the notice shows that under the general power of the employer to close down the business the appellant was informing all concerned that it was proceeding to do so as from 1st July, 1958. The Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been a closure of the business and the text of the notice made the determination of the question quite a simple affair. As already noted, the question oft was not even mooted when the issues were settled nor was any plea taken that there had been a temporary cessation of work under Standing Order No. 11. By the notice the employer gave the employees to understand that the factory would not function because the Government notification had made the running of it a financial impossibility18. In our view decision of this Court in Kalinga Tubes Ltd. v. Their Workmen A.I.R., (1959) S.C.R. 19, does not help the appellant.19. The contention that a workman has to establish that he had worked for 240 days in all the years for each year the compensation was claimedis without force. It is significant to note that by the first issue before the Labour Court the applicant was only called upon to prove that she had been in continuous service of the appellant for not less than 240 days immediately before the closure. In our opinion the issue had been properly framed. Section25FFFlays down that in order that a workman may claim the benefit of the provision he must establish that he has been in continuous service for not less than one year in that undertaking immediately before the closure. As soon as this is done he becomes entitled to notice and compensation in accordance with the provisions of S.25F as ifhe had been retrenched subject to the provisions of. (2).n (2) of S.25FFFis not applicable to this case. Section) lays down that a workman cannot be retrenched unless he had been paid compensation equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further no such workman can claim the benefit of the provision for compensation unless he can show that he has been in continuous service for not less than one year under the employer. Under S.25Ba workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days is to be deemed to have completed one years service in the industry. Consequently an enquiry has to be made to find out whether the workman had actually worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment. These provisions of law do not show that a workman after satisfying the test under S.25Bhas further to show that he has worked during all the period he has been in the service of the employer for 240 days in the year. However the compensation to be paid to the workman under cl. (b) of S.25Fis not to exceed his average pay for three months. In the case of the respondent it was found by the Labour Court that she had worked for eight years and but for the proviso to S.25Fshe would have been entitled to four months pay. | 0 | 4,682 | 1,030 | ### 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:
No such issue was even raised before the Labour Court. By issue 7 the appellant contended that the closure was on account of unavoidable circumstances beyond the control of the employer, and issue 6 related to the question as to whether the closure had resulted in the retrenchment of the applicant. These two issues, in our opinion, go to show that the fact of closure was not challenged but an attempt was made to establish that the closure was within the meaning of the proviso to S. 25-FFF(1) or otherwise that the closure was of such a type as did not really amount to retrenchment. 15. It was urged before us that there could be no closure because the appellant was merely protesting against irresponsible Government action and had no intention to close the business permanently.16. In our opinion, the express terms of the notice, preclude such contention. Nobody could say on the 1st July, 1958 that the Government would think fit to withdraw the notification and the first paragraph of the notice shows that under the general power of the employer to close down the business the appellant was informing all concerned that it was proceeding to do so as from 1st July, 1958. The Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been a closure of the business and the text of the notice made the determination of the question quite a simple affair. 17. A fair attempt was made before us to contend that the finding of the Labour Court as to closure was perverse and that it was only a stoppage of work within the meaning of Standing Order No. 11 or a lock-out. As already noted, the question of lock-out was not even mooted when the issues were settled nor was any plea taken that there had been a temporary cessation of work under Standing Order No. 11. By the notice the employer gave the employees to understand that the factory would not function because the Government notification had made the running of it a financial impossibility. 18. In our view decision of this Court in Kalinga Tubes Ltd. v. Their Workmen A.I.R., (1959) S.C.R. 19, does not help the appellant. There the management of the appellant gave notice that as a direct consequence of the continued and sustained illegal activities of the workmen and their preconcerted and pre-meditated acts by illegally keeping confined and forcibly resisting the exit of the staff and officers of the company in the administrative office building for many hours and the consequent refusal by the officers and supervisory staff of the company to carry on their work being reasonably apprehensive of their safety it had become impossible to run the factory. On this plea the company notified that there would be a complete closure of the factory with effect from 3rd October, 1967. There the real question was whether the Explanation to S. 25-FFF was applicable to the facts of the case and the court came to the conclusion that it was not possible to hold that the closure of the undertaking was due to unavoidable circumstances beyond the control of the appellant and as such the appellant was liable to pay compensation under the principal part of sub-s.(1) of S.25-FFF of the Act. On the facts of this case we find ourselves unable to hold that the undertaking was closed down on account of the unavoidable circumstances beyond the control of the employer within the meaning of S. 25-FFF. 19. The contention that a workman has to establish that he had worked for 240 days in all the years for each year the compensation was claimed is without force. It is significant to note that by the first issue before the Labour Court the applicant was only called upon to prove that she had been in continuous service of the appellant for not less than 240 days immediately before the closure. In our opinion the issue had been properly framed. Section 25-FFF lays down that in order that a workman may claim the benefit of the provision he must establish that he has been in continuous service for not less than one year in that undertaking immediately before the closure. As soon as this is done he becomes entitled to notice and compensation in accordance with the provisions of S. 25-F as if he had been retrenched subject to the provisions of sub-s. (2). Sub-section (2) of S. 25-FFF is not applicable to this case. Section 25-F(b) lays down that a workman cannot be retrenched unless he had been paid compensation equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further no such workman can claim the benefit of the provision for compensation unless he can show that he has been in continuous service for not less than one year under the employer. Under S. 25-B a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days is to be deemed to have completed one years service in the industry. Consequently an enquiry has to be made to find out whether the workman had actually worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment. These provisions of law do not show that a workman after satisfying the test under S. 25-B has further to show that he has worked during all the period he has been in the service of the employer for 240 days in the year. However the compensation to be paid to the workman under cl. (b) of S. 25-F is not to exceed his average pay for three months. In the case of the respondent it was found by the Labour Court that she had worked for eight years and but for the proviso to S. 25F she would have been entitled to four months pay.
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### Explanation:
2. The amount in stake in this appeal is quite an insignificant one but the appeal has been brought as a test case for a number of other similar disputes9. The above provisions of the Act make it clear that the jurisdiction of a Labour Court is not confined to disputes specified in the Second Schedule but the said court has also to perform other functions as may be assigned to it. If there is a closure of a business within the meaning of S. 25FFF, a workman who has been in continuous service for not less than one year in that undertaking immediately before the closure becomes entitled to notice and compensation in accordance with the provisions of S. 25F, as if he or she had been retrenches.13. The concluding portion of the above observations cannot be considered dissociated from the setting in which they were made. As was pointed out in the case of the Central Bank (supra) the examination of the claim under S.33C(2)may in some cases have to be preceded by an enquiry into the existence of the right. A mere denial of the fact of retrenchment would not be enough to take the matter out of the jurisdiction of the Labour Court14. In this case the written statement of the appellant before the Labour Court does not even show that there was any plea that there had been af or a. All that was said in paragraph 9 was that "the closure in accordance with the notice, i.e., 1st July, 1958, does not fall within the scope ofS.25FFF of theAct". No such issue was even raised before the Labour Court. By issue 7 the appellant contended that the closure was on account of unavoidable circumstances beyond the control of the employer, and issue 6 related to the question as to whether the closure had resulted in the retrenchment of the applicant. These two issues, in our opinion, go to show that the fact of closure was not challenged but an attempt was made to establish that the closure was within the meaning of the proviso to S.) or otherwise that the closure was of such a type as did not really amount to retrenchment16. In our opinion, the express terms of the notice, preclude such contention. Nobody could say on the 1st July, 1958 that the Government would think fit to withdraw the notification and the first paragraph of the notice shows that under the general power of the employer to close down the business the appellant was informing all concerned that it was proceeding to do so as from 1st July, 1958. The Labour Court had jurisdiction to make a preliminary enquiry as to whether there had been a closure of the business and the text of the notice made the determination of the question quite a simple affair. As already noted, the question oft was not even mooted when the issues were settled nor was any plea taken that there had been a temporary cessation of work under Standing Order No. 11. By the notice the employer gave the employees to understand that the factory would not function because the Government notification had made the running of it a financial impossibility18. In our view decision of this Court in Kalinga Tubes Ltd. v. Their Workmen A.I.R., (1959) S.C.R. 19, does not help the appellant.19. The contention that a workman has to establish that he had worked for 240 days in all the years for each year the compensation was claimedis without force. It is significant to note that by the first issue before the Labour Court the applicant was only called upon to prove that she had been in continuous service of the appellant for not less than 240 days immediately before the closure. In our opinion the issue had been properly framed. Section25FFFlays down that in order that a workman may claim the benefit of the provision he must establish that he has been in continuous service for not less than one year in that undertaking immediately before the closure. As soon as this is done he becomes entitled to notice and compensation in accordance with the provisions of S.25F as ifhe had been retrenched subject to the provisions of. (2).n (2) of S.25FFFis not applicable to this case. Section) lays down that a workman cannot be retrenched unless he had been paid compensation equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further no such workman can claim the benefit of the provision for compensation unless he can show that he has been in continuous service for not less than one year under the employer. Under S.25Ba workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days is to be deemed to have completed one years service in the industry. Consequently an enquiry has to be made to find out whether the workman had actually worked for not less than 240 days during a period of 12 calendar months immediately preceding the retrenchment. These provisions of law do not show that a workman after satisfying the test under S.25Bhas further to show that he has worked during all the period he has been in the service of the employer for 240 days in the year. However the compensation to be paid to the workman under cl. (b) of S.25Fis not to exceed his average pay for three months. In the case of the respondent it was found by the Labour Court that she had worked for eight years and but for the proviso to S.25Fshe would have been entitled to four months pay.
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Parshottam Jadavji Jani Vs. State Of Gujarat & Ors | claim that the responsible officer should be cross-examined by me for the purpose of showing that the proposed acquisition is not for public purpose and that there is no need to acquire the present lands. The other suitable lands are available and the Corporation has not availed of the same and that the acquisition needs to be dropped. I say that the contiguous lands to the lands under the first notification are available and it would be more suitable than the present land. I, therefore, submit that the proposed acquisition is mala fide inasmuch as may lands are preferred to the other land-owners available immediately near the lands required under the first notification".He accordingly prayed :"(a) That the officers of the said Corporation which have sought the acquisition and/or such Officer I name hereafter be summoned for the purposes of cross-examination.(b) That personal hearing be granted."3. It appears that hearing was fixed for September 18, 1969; this date was extended from time to time till November 18, 1969. The appellant did not appear on these dates nor did he apply for any extension of time. His written objections dated August 12/18, 1969 and dated September 18, 1969 were considered and included in the report, under Section 5-A to the Government.4. Three points were pressed by the appellant before the High Court. The principal point that the Gujarat Industrial Development Corporation Act, 1962 was beyond the legislative competence of the State Legislature no longer survives as this Court has held this Act to be valid in the case of Ramtanu C. H. Society v. State of Maharashtra. (AIR (1970) SC 1771 : 1970 (3) SCC 323.) The second ground pressed before the High Court was that the establishment of Industrial Area by the Corporation was not a public purpose but a private purpose. In our view the High Court was right in holding that this was a public purpose. The third ground raised before the High Court was strongly pressed before us. According to the learned Counsel the report under Section 5-A of the Land Acquisition Act was vitiated because the Collector had not granted an opportunity to the appellant to cross-examine the officers of the Corporation for the purpose of showing that the purpose for which the Corporation sought to acquire the lands was not a public purpose and there was no need to acquire the appellants land. The High Court relying on its earlier decision in Chandalal v. State ((1963 (4) GLR 326.) held that the inquiry under Section 5-A(2) is an administrative inquiry and objector is not entitled to cross-examine any officer or members of the acquiring body".5. Under Section 55 of the Land Acquisition Act certain rules have been made for the guidance of officers in dealing with objections lodges under Section 5-A of the Act. These rules are as follows :"1. Whenever any notification under Section 4 of the Act has been published but the provisions of Section 17 have not been applied and the Collector has under the provisions of Section 4(1) issued notice to the parties interested; and on or before the last day fixed by the Collector in those notices in this behalf any objection is lodged under Section 5-A(2), firstly, the Collector shall record the objection in his proceeding, secondly, the Collector shall consider whether the objection is admissible according to these rules.2. To be admissible (a) an objection must be presented in writing by a party interested in the notified land and must be presented within thirty days after the date of publication of the notification under Section 4 or within such period as may be fixed by the Collector; (b) it must allege some specific objections, such as these -(i) the notified purpose is not genuinely or properly a public purpose;(ii) the land notified in not suitable for the purpose for which it is notified;(iii) the land is not so well suited as other land;(iv) the area proposed is excessive;(v) the objectors land has been selected maliciously or vexatiously;(iv) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public rights of way or other conveniences or will desecrate religious buildings, graveyard and the like.3. After admitting an objection and after having given the objector an opportunity of being heard either in person or by pleader, the Collector shall decide whether it is desirable to hear oral or documentary evidence, which under Section 14 or Section 40 of the Act, he has power to call for. If evidence tendered by the objector is admitted, the Collector shall also afford the other party an opportunity of rebutting it by other evidence or of cross-examining the witnesses :If he admits evidence, he will fix a time and place of hearing it; and will hear and record it in his proceedings.4. Agents, other than pleaders, will not be allowed to appear on behalf of persons interested in any enquiry under Section 5-A of the Act.5. After completing the record of evidence, the Collector shall submit his report and recommendations as to each objection, whether inadmissible or admissible for the orders of Government under Section 5-A(2) of the Act."6. It seems to us that the rules have been complied with. The appellant was given an opportunity to be heard personally. He chose not to avail himself of that opportunity. The appellant cannot under these rules claim to cross-examine officers of the Corporation, and in our opinion the prayer to cross-examine officers was rightly rejected. Indeed it was a strange request. The officers had not given any evidence before the Collector and we are unable to see what principle entitles the appellant to claim this right. When rules have been framed regulating the enquiry under Section 5-A of the Land Acquisition Act, it is not necessary to consider whether the enquiry is administrative or quasi-judicial and whether rules of natural justice have been complied with, and accordingly we say nothing on this point. | 0[ds]5. Under Section 55 of the Land Acquisition Act certain rules have been made for the guidance of officers in dealing with objections lodges under Section 5-A of the Act.It seems to us that the rules have been complied with. The appellant was given an opportunity to be heard personally. He chose not to avail himself of that opportunity. The appellant cannot under these rules claim to cross-examine officers of the Corporation, and in our opinion the prayer to cross-examine officers was rightly rejected. Indeed it was a strange request. The officers had not given any evidence before the Collector and we are unable to see what principle entitles the appellant to claim this right. When rules have been framed regulating the enquiry under Section 5-A of the Land Acquisition Act, it is not necessary to consider whether the enquiry is administrative or quasi-judicial and whether rules of natural justice have been complied with, and accordingly we say nothing on this point. | 0 | 1,444 | 178 | ### Instruction:
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claim that the responsible officer should be cross-examined by me for the purpose of showing that the proposed acquisition is not for public purpose and that there is no need to acquire the present lands. The other suitable lands are available and the Corporation has not availed of the same and that the acquisition needs to be dropped. I say that the contiguous lands to the lands under the first notification are available and it would be more suitable than the present land. I, therefore, submit that the proposed acquisition is mala fide inasmuch as may lands are preferred to the other land-owners available immediately near the lands required under the first notification".He accordingly prayed :"(a) That the officers of the said Corporation which have sought the acquisition and/or such Officer I name hereafter be summoned for the purposes of cross-examination.(b) That personal hearing be granted."3. It appears that hearing was fixed for September 18, 1969; this date was extended from time to time till November 18, 1969. The appellant did not appear on these dates nor did he apply for any extension of time. His written objections dated August 12/18, 1969 and dated September 18, 1969 were considered and included in the report, under Section 5-A to the Government.4. Three points were pressed by the appellant before the High Court. The principal point that the Gujarat Industrial Development Corporation Act, 1962 was beyond the legislative competence of the State Legislature no longer survives as this Court has held this Act to be valid in the case of Ramtanu C. H. Society v. State of Maharashtra. (AIR (1970) SC 1771 : 1970 (3) SCC 323.) The second ground pressed before the High Court was that the establishment of Industrial Area by the Corporation was not a public purpose but a private purpose. In our view the High Court was right in holding that this was a public purpose. The third ground raised before the High Court was strongly pressed before us. According to the learned Counsel the report under Section 5-A of the Land Acquisition Act was vitiated because the Collector had not granted an opportunity to the appellant to cross-examine the officers of the Corporation for the purpose of showing that the purpose for which the Corporation sought to acquire the lands was not a public purpose and there was no need to acquire the appellants land. The High Court relying on its earlier decision in Chandalal v. State ((1963 (4) GLR 326.) held that the inquiry under Section 5-A(2) is an administrative inquiry and objector is not entitled to cross-examine any officer or members of the acquiring body".5. Under Section 55 of the Land Acquisition Act certain rules have been made for the guidance of officers in dealing with objections lodges under Section 5-A of the Act. These rules are as follows :"1. Whenever any notification under Section 4 of the Act has been published but the provisions of Section 17 have not been applied and the Collector has under the provisions of Section 4(1) issued notice to the parties interested; and on or before the last day fixed by the Collector in those notices in this behalf any objection is lodged under Section 5-A(2), firstly, the Collector shall record the objection in his proceeding, secondly, the Collector shall consider whether the objection is admissible according to these rules.2. To be admissible (a) an objection must be presented in writing by a party interested in the notified land and must be presented within thirty days after the date of publication of the notification under Section 4 or within such period as may be fixed by the Collector; (b) it must allege some specific objections, such as these -(i) the notified purpose is not genuinely or properly a public purpose;(ii) the land notified in not suitable for the purpose for which it is notified;(iii) the land is not so well suited as other land;(iv) the area proposed is excessive;(v) the objectors land has been selected maliciously or vexatiously;(iv) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public rights of way or other conveniences or will desecrate religious buildings, graveyard and the like.3. After admitting an objection and after having given the objector an opportunity of being heard either in person or by pleader, the Collector shall decide whether it is desirable to hear oral or documentary evidence, which under Section 14 or Section 40 of the Act, he has power to call for. If evidence tendered by the objector is admitted, the Collector shall also afford the other party an opportunity of rebutting it by other evidence or of cross-examining the witnesses :If he admits evidence, he will fix a time and place of hearing it; and will hear and record it in his proceedings.4. Agents, other than pleaders, will not be allowed to appear on behalf of persons interested in any enquiry under Section 5-A of the Act.5. After completing the record of evidence, the Collector shall submit his report and recommendations as to each objection, whether inadmissible or admissible for the orders of Government under Section 5-A(2) of the Act."6. It seems to us that the rules have been complied with. The appellant was given an opportunity to be heard personally. He chose not to avail himself of that opportunity. The appellant cannot under these rules claim to cross-examine officers of the Corporation, and in our opinion the prayer to cross-examine officers was rightly rejected. Indeed it was a strange request. The officers had not given any evidence before the Collector and we are unable to see what principle entitles the appellant to claim this right. When rules have been framed regulating the enquiry under Section 5-A of the Land Acquisition Act, it is not necessary to consider whether the enquiry is administrative or quasi-judicial and whether rules of natural justice have been complied with, and accordingly we say nothing on this point.
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### Explanation:
5. Under Section 55 of the Land Acquisition Act certain rules have been made for the guidance of officers in dealing with objections lodges under Section 5-A of the Act.It seems to us that the rules have been complied with. The appellant was given an opportunity to be heard personally. He chose not to avail himself of that opportunity. The appellant cannot under these rules claim to cross-examine officers of the Corporation, and in our opinion the prayer to cross-examine officers was rightly rejected. Indeed it was a strange request. The officers had not given any evidence before the Collector and we are unable to see what principle entitles the appellant to claim this right. When rules have been framed regulating the enquiry under Section 5-A of the Land Acquisition Act, it is not necessary to consider whether the enquiry is administrative or quasi-judicial and whether rules of natural justice have been complied with, and accordingly we say nothing on this point.
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M/s Dozco India P. Ltd Vs. M/s Doosan Infracore Co. Ltd | the arbitration procedure including the seat/venue of arbitration and it was, therefore, that the Court went on to exercise the jurisdiction under Section 11(6) of the Act. It was specifically found therein that there was no exclusion of the provisions of the Act by the parties either expressly or impliedly, which is clear from the observations made in the paragraph 37 of that judgment. 13. Ms. Mohana, learned Counsel appearing on behalf of the petitioner, however, very heavily relied on the decision in Citation Infowares Ltd. v. Equinox Corporation (cited supra). There also, the parties had agreed to be governed by the laws of California, USA.The learned Counsel invited our attention to the Clause 10.1 of the agreement therein, which runs as under:- "10.1Governing law:This agreement shall be governed by and interpreted in accordance with the laws of California, USA and matters of dispute, if any, relating to this agreement or its subject matter shall be referred for arbitration to a mutually agreed arbitrator." Ms. Mohana further submitted that the language of this Clause is quite comparable to Article 23.1 of the Distributorship Agreement between the parties in this case, whereas, Shri Gurukrishna Kumar, learned Counsel for the respondent contended that there is essential difference in the language of both the Clauses. He pointed out that the language of Article 23.1, in contradistinction with the Clause 10.1 in the case of Citation Infowares Ltd. v. Equinox Corporation (cited supra), clearly spells out that the seat of the arbitration was agreed to be in Seoul, Korea and thereby, there would be express exclusion of Part I of the Act. In my opinion, there is essential difference between the clauses referred to in the case of Citation Infowares Ltd. v. Equinox Corporation (cited supra) as also in Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra) on one hand and Article 23.1 in the present case, on the other. Shri Gurukrishna Kumar rightly pointed out that the advantage of bracketed portion cannot be taken, particularly, in view of the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra), wherein it was held:- "All contracts which provide for arbitration and contain a foreign element may involve three potentially relevant systems of law: (a) the law governing the substantive contract; (2) the law governing the agreement to arbitrate and the performance of that agreement; (3) the law governing the conduct of the arbitration. In the majority of the cases all three will be the same, but (1) will often be different from (2) and (3) and occasionally, but rarely, (2) may also differ from (3)". That is exactly the case here. The language of Article 23.1 clearly suggests that all the three laws are the laws of The Republic of Korea with the seat of the arbitration in Seoul, Korea and the arbitration to be conducted in accordance with the rules of International Chamber of Commerce. In respect of the bracketed portion, however, it is to be seen that it was observed in that case:- ".... It seems clear that the submissions advanced below confused the legal "seat" etc. of an arbitration with the geographically convenient place or places for holding hearings. This distinction is nowadays a common feature of international arbitrations and is helpfully explained in Redfern and Hunter in the following passage under the heading "The Place of Arbitration": The preceding discussion has been on the basis that there is only one "place" of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of reference or the minutes of proceedings or in some other way as the place or "seat" of the arbitration. This does not mean, however, that the arbitral tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an arbitral tribunal to hold meetings - or even hearings - in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses.......... It may be more convenient for an arbitral tribunal sitting in one country to conduct a hearing in another country - for instance, for the purpose of taking evidence..... In such circumstances, each move of the arbitral tribunal does not of itself mean that the seat of the arbitration changes. The seat of the arbitration remains the place initially agreed by or on behalf of the parties. These aspects need to be borne in mind when one comes to the Judges construction of this policy." It would be clear from this that the bracketed portion in the Article was not for deciding upon the seat of the arbitration, but for the convenience of the parties in case they find to hold the arbitration proceedings somewhere else than Seoul, Korea. The part which has been quoted above from the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra) supports this inference. In that view, my inferences are that:- 1. a clear language of Articles 22 and 23 of the Distributorship Agreement between the parties in this case spell out a clear agreement between the parties excluding Part I of the Act.2. the law laid down in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra) and Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra), as also in Citation Infowares Ltd. v. Equinox Corporation (cited supra) is not applicable to the present case.3. Since the interpretation of Article 23.1 suggests that the law governing the arbitration will be Korean law and the seat of arbitration will be Seoul in Korea, there will be no question of applicability of Section 11(6) of the Act and the appointment of Arbitrator in terms of that provision. | 0[ds]This Article 23 will have to be read in the backdrop of Article 22 and more particularly, Article 22.1. It is clear from the language of Article 22.1 that the whole Agreement would be governed by and construed in accordance with the laws of The Republic of Korea. It is for this reason that the respondent heavily relied on the law laid down in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. & Ors. (cited supra). This judgment is a complete authority on the proposition that the arbitrability of the dispute is to be determined in terms of the law governing arbitration agreement and the arbitration proceedings has to be conducted in accordance with the curial law. This Court, in that judgment, relying on Mustill and Boyd (the Law and Practice of Commercial Arbitration in England, 2nd Edition), observed in paragraph 15 that where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the Court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted and then returns to the first law in order to give effect to the resulting award. In paragraph 16, this Court, in no uncertain terms, declared that the law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of thatfollowing paragraph from Mustill and Boyd is extremely important for the decision of thisthe absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the seat of the arbitration, i.e. the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence of an express choice by the parties it is first necessary to determine the seat of the arbitration, by construing the agreement toparagraphs 15 and 16, this Court has heavily relied on the observations quoted above. If we see the language of Article 23.1 in the light of the Article 22.1, it is clear that the parties had agreed that the disputes arising out of the Agreement between them would be finally settled by the arbitration in Seoul, Korea.Not only that, but the rules of arbitration to be made applicable were the Rules of International Chamber of Commerce. This gives the prima facie impression that the seat of arbitration was only in Seoul, South Korea. However, Ms. Mohana, learned Counsel appearing on behalf of the petitioner drew our attention to the bracketed portion and contended that because of the bracketed portion which is to the effect "or such other place as the parties may agree in writing", the seat could be elsewhere also. It is based on this that Ms. Mohana contended that, therefore, there is no express exclusion of Part I of the Act. It is not possible to accept this contention for the simple reason that a bracket could not be allowed to control the main clause. Bracketed portion is only for the purposes of further explanation. In my opinion, Shri Gurukrishna Kumar, learned Counsel appearing on behalf of the respondent, is right in contending that the bracketed portion is meant only for the convenience of the arbitral Tribunal and/or the parties for conducting the proceedings of the arbitration, but the bracketed portion does not, in any manner, change the seat of arbitration, which is only Seoul, Korea. The language is clearly indicative of the express exclusion of Part I of thewould be clear from this that the bracketed portion in the Article was not for deciding upon the seat of the arbitration, but for the convenience of the parties in case they find to hold the arbitration proceedings somewhere else than Seoul, Korea. The part which has been quoted above from the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra) supports this inference. In that view, my inferences area clear language of Articles 22 and 23 of the Distributorship Agreement between the parties in this case spell out a clear agreement between the parties excluding Part I of the Act.2. the law laid down in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra) and Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra), as also in Citation Infowares Ltd. v. Equinox Corporation (cited supra) is not applicable to the present case.3. Since the interpretation of Article 23.1 suggests that the law governing the arbitration will be Korean law and the seat of arbitration will be Seoul in Korea, there will be no question of applicability of Section 11(6) of the Act and the appointment of Arbitrator in terms of that provision. | 0 | 4,290 | 903 | ### Instruction:
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the arbitration procedure including the seat/venue of arbitration and it was, therefore, that the Court went on to exercise the jurisdiction under Section 11(6) of the Act. It was specifically found therein that there was no exclusion of the provisions of the Act by the parties either expressly or impliedly, which is clear from the observations made in the paragraph 37 of that judgment. 13. Ms. Mohana, learned Counsel appearing on behalf of the petitioner, however, very heavily relied on the decision in Citation Infowares Ltd. v. Equinox Corporation (cited supra). There also, the parties had agreed to be governed by the laws of California, USA.The learned Counsel invited our attention to the Clause 10.1 of the agreement therein, which runs as under:- "10.1Governing law:This agreement shall be governed by and interpreted in accordance with the laws of California, USA and matters of dispute, if any, relating to this agreement or its subject matter shall be referred for arbitration to a mutually agreed arbitrator." Ms. Mohana further submitted that the language of this Clause is quite comparable to Article 23.1 of the Distributorship Agreement between the parties in this case, whereas, Shri Gurukrishna Kumar, learned Counsel for the respondent contended that there is essential difference in the language of both the Clauses. He pointed out that the language of Article 23.1, in contradistinction with the Clause 10.1 in the case of Citation Infowares Ltd. v. Equinox Corporation (cited supra), clearly spells out that the seat of the arbitration was agreed to be in Seoul, Korea and thereby, there would be express exclusion of Part I of the Act. In my opinion, there is essential difference between the clauses referred to in the case of Citation Infowares Ltd. v. Equinox Corporation (cited supra) as also in Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra) on one hand and Article 23.1 in the present case, on the other. Shri Gurukrishna Kumar rightly pointed out that the advantage of bracketed portion cannot be taken, particularly, in view of the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra), wherein it was held:- "All contracts which provide for arbitration and contain a foreign element may involve three potentially relevant systems of law: (a) the law governing the substantive contract; (2) the law governing the agreement to arbitrate and the performance of that agreement; (3) the law governing the conduct of the arbitration. In the majority of the cases all three will be the same, but (1) will often be different from (2) and (3) and occasionally, but rarely, (2) may also differ from (3)". That is exactly the case here. The language of Article 23.1 clearly suggests that all the three laws are the laws of The Republic of Korea with the seat of the arbitration in Seoul, Korea and the arbitration to be conducted in accordance with the rules of International Chamber of Commerce. In respect of the bracketed portion, however, it is to be seen that it was observed in that case:- ".... It seems clear that the submissions advanced below confused the legal "seat" etc. of an arbitration with the geographically convenient place or places for holding hearings. This distinction is nowadays a common feature of international arbitrations and is helpfully explained in Redfern and Hunter in the following passage under the heading "The Place of Arbitration": The preceding discussion has been on the basis that there is only one "place" of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of reference or the minutes of proceedings or in some other way as the place or "seat" of the arbitration. This does not mean, however, that the arbitral tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an arbitral tribunal to hold meetings - or even hearings - in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses.......... It may be more convenient for an arbitral tribunal sitting in one country to conduct a hearing in another country - for instance, for the purpose of taking evidence..... In such circumstances, each move of the arbitral tribunal does not of itself mean that the seat of the arbitration changes. The seat of the arbitration remains the place initially agreed by or on behalf of the parties. These aspects need to be borne in mind when one comes to the Judges construction of this policy." It would be clear from this that the bracketed portion in the Article was not for deciding upon the seat of the arbitration, but for the convenience of the parties in case they find to hold the arbitration proceedings somewhere else than Seoul, Korea. The part which has been quoted above from the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra) supports this inference. In that view, my inferences are that:- 1. a clear language of Articles 22 and 23 of the Distributorship Agreement between the parties in this case spell out a clear agreement between the parties excluding Part I of the Act.2. the law laid down in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra) and Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra), as also in Citation Infowares Ltd. v. Equinox Corporation (cited supra) is not applicable to the present case.3. Since the interpretation of Article 23.1 suggests that the law governing the arbitration will be Korean law and the seat of arbitration will be Seoul in Korea, there will be no question of applicability of Section 11(6) of the Act and the appointment of Arbitrator in terms of that provision.
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### Explanation:
This Article 23 will have to be read in the backdrop of Article 22 and more particularly, Article 22.1. It is clear from the language of Article 22.1 that the whole Agreement would be governed by and construed in accordance with the laws of The Republic of Korea. It is for this reason that the respondent heavily relied on the law laid down in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. & Ors. (cited supra). This judgment is a complete authority on the proposition that the arbitrability of the dispute is to be determined in terms of the law governing arbitration agreement and the arbitration proceedings has to be conducted in accordance with the curial law. This Court, in that judgment, relying on Mustill and Boyd (the Law and Practice of Commercial Arbitration in England, 2nd Edition), observed in paragraph 15 that where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the Court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted and then returns to the first law in order to give effect to the resulting award. In paragraph 16, this Court, in no uncertain terms, declared that the law which would apply to the filing of the award, to its enforcement and to its setting aside would be the law governing the agreement to arbitrate and the performance of thatfollowing paragraph from Mustill and Boyd is extremely important for the decision of thisthe absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the seat of the arbitration, i.e. the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence of an express choice by the parties it is first necessary to determine the seat of the arbitration, by construing the agreement toparagraphs 15 and 16, this Court has heavily relied on the observations quoted above. If we see the language of Article 23.1 in the light of the Article 22.1, it is clear that the parties had agreed that the disputes arising out of the Agreement between them would be finally settled by the arbitration in Seoul, Korea.Not only that, but the rules of arbitration to be made applicable were the Rules of International Chamber of Commerce. This gives the prima facie impression that the seat of arbitration was only in Seoul, South Korea. However, Ms. Mohana, learned Counsel appearing on behalf of the petitioner drew our attention to the bracketed portion and contended that because of the bracketed portion which is to the effect "or such other place as the parties may agree in writing", the seat could be elsewhere also. It is based on this that Ms. Mohana contended that, therefore, there is no express exclusion of Part I of the Act. It is not possible to accept this contention for the simple reason that a bracket could not be allowed to control the main clause. Bracketed portion is only for the purposes of further explanation. In my opinion, Shri Gurukrishna Kumar, learned Counsel appearing on behalf of the respondent, is right in contending that the bracketed portion is meant only for the convenience of the arbitral Tribunal and/or the parties for conducting the proceedings of the arbitration, but the bracketed portion does not, in any manner, change the seat of arbitration, which is only Seoul, Korea. The language is clearly indicative of the express exclusion of Part I of thewould be clear from this that the bracketed portion in the Article was not for deciding upon the seat of the arbitration, but for the convenience of the parties in case they find to hold the arbitration proceedings somewhere else than Seoul, Korea. The part which has been quoted above from the decision in Naviera Amozonica Peruana S.A. v. Compania Internationacional De Seguros Del Peru (cited supra) supports this inference. In that view, my inferences area clear language of Articles 22 and 23 of the Distributorship Agreement between the parties in this case spell out a clear agreement between the parties excluding Part I of the Act.2. the law laid down in Bhatia International v. Bulk Trading S.A. & Anr. (cited supra) and Indtel Technical Services Private Ltd. v. W.S. Atkins Rail Ltd. (cited supra), as also in Citation Infowares Ltd. v. Equinox Corporation (cited supra) is not applicable to the present case.3. Since the interpretation of Article 23.1 suggests that the law governing the arbitration will be Korean law and the seat of arbitration will be Seoul in Korea, there will be no question of applicability of Section 11(6) of the Act and the appointment of Arbitrator in terms of that provision.
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Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax Nagpur & Others | Officer commences the proceedings for assessment by the issue of a notice under sub-section (1) of s. 10, and, in the case of a registered dealer, the statute has already fixed the date for the furnishing of the return and therefore has set in motion the process for the assessment of the sales tax by the Sales Tax Officer. I do not see any good reason why the statutory notice to the registered dealer be not considered to be at par with the notice issued to the ordinary dealer by the Sales Tax Officer and why it should not be taken to initiate the assessment proceedings just as the issue of a notice by the Sales Tax Officer would have initiated the proceedings against the ordinary dealer. The failure of the registered dealer to furnish the return enables the Sales Tax Officer to assess the tax to the best of his judgment, of course, after giving an opportunity to the registered dealer of being heard. It would be incongruous if the Sales Tax Officer be held not to have initiated the assessment proceedings against the registered dealer and yet, on the failure of such a dealer to furnish the returns, to proceed in the very first instance to assess tax on the dealer to the best of his judgment. Such a power of taxing to the best of his judgment is an indication of the fact that the dealer had defaulted in respect of some proceedings connected with the assessment of tax and thus has made himself liable to tax on the best judgment basis instead of a tax on the computed amount of turnover ac- cording to the records. His default lies in his not submit- ting, the return of turnover and not depositing the tax due on the turnover shown in the return. The payment of tax as a result of the statutory notice under s. 10(1) and r. 19 well points to the conclusion that the statutory notice and rule initiate the assessment proceedings against the registered dealer at least from the date of the close of the quarter for which the turnover is to be furnished and tax is to be paid.The mere fact that the Sales Tax Officer cannot proceed against an unregistered dealer who, though liable to pay a tax, did not get himself registered, after the expiry of three years from the period the -turnover in which was liable to tax, cannot lead to the conclusion that the Sales Tax Officer cannot take necessary steps to assess a registered dealer under sub-section (2) and (4) of s. 11 after the expiry of three years from the period whose turnover he proceeds to assess, for the simple reason that s. 11 or any other provision of the Act does not lay down any such restriction on the Sales Tax Officers powers under these sub-sections.24. Such a power in the Sales Tax Officer does not contravene the provisions of Art. 14 of the Constitution. The registered dealer and the unregistered dealer belong to different classes. The former is one whose liability to tax is admitted. The other has admitted no such liability. The Sales Tax Officer can find out about the liability of the unregistered dealer to tax only by issuing a notice to him under sub-section (1) of s. 10 when he thinks that such a dealer might be liable to tax. It is only when the information in his possession is sufficiently strong and trustworthy as to satisfy him that a certain unregistered dealer is liable to by sales tax and has wilfully failed to apply for registration that he can take action under sub- section (5) of s. 11. The circumstances in which the Sales Tax Officer can take action against the unregistered dealer are different from the circumstances in which lie takes action against the registered dealer. I am therefore of opinion that the Sales Tax Officer does not contravene Art. 14 of the Constitution as contended for the appellant, if he takes action against a registered dealer under sub-section (2) or (4) of s. 11 even after the expiry of three years from the period whose turnover is to beassessed.It is to be noticed that the Act, as originally-enacted, did not have s. 11-A. -That was introduced in 1953 and made retrospective from June 1, 1947. Amendment was made in 1953 in s. 11 (5) and it made the period of limitation for proceeding to assess tax three years. No amendment providing limitation was however made in s. 11(2) and (4) in 1953. This must be deliberate and indicates the intention of the Legislature not to limit the period during which action can be taken under s. 11(2) and (4).25. The Register of Cases in Form XIII of the Rules & Forms is for cases instituted under ss.10(3), 11, 11-A and 22-C of the Act. Its columns do not show when the assessment of tax proceedings commence. Still its column 14 is meant for Amount of penalty imposed, if any, with relevant section under which it is imposed and reference to defaulters list. This shows that the Sales Tax Officer maintains a list of registered dealers who had defaulted in not complying with the notices under s. 10(1) or 11(2) or under any other provision which makes the registered dealer liable to penalty. The maintenance of the defaulters list indicates that the Sales Tax Officer initiates proceedings for tax assessment prior to his issuing notices under s. 10(3) and that this must be after the expiry of the date for furnishing returns referred to in s. 10(1).26. In view of the opinion I have expressed above, it is not necessary to decide what the precise scope of the expression turnover escaping assessment in s. 11-A is.27. It follows that the impugned notices were properly issued by the Assistant Commissioner of Sales Tax to the appellant and that these appeals fail. I would accordingly dismiss these appeals with costs.ORDER BY COURT28. | 1[ds]It is not necessary to multiply citations. We, there- fore, hold that the expression "escaped assessment" in s. 11-A of the Act includes that of a turnover which has not been assessed at all, because for one reason or other no assessment proceedings were initiated and therefore, no assessment was made in respectdecision is a clear authority for the position that if a return was duly made, the assessment could be made at any time unless the statute prescribed a time limit. This can only be for the reason that the proceedings duly initiated in time will be pending and can, therefore, be completed without time limit. A proceeding is said to be pending as soon as it is commenced and until it is concluded. On the said analogy, the assessment proceedings under the Sales-tax Act must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment.Before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and if, completed, it might be that the entire turnover would be caught in theis, therefore, clear that under sub-section (1) of s. 10, the Commissioner need not issue a notice to a registered dealer for furnishing the relevant returns, but a statutory obligation is imposed on the said dealer to do so by such dates and to such authority as may be prescribed.Now coming to the case of a dealer who did not register himself under the Act, the position is different. There is no statutory obligation cast on him by any section to submit a return. His is really a case of evasion from his obligation to get himself registered under theare concerned in this case with the last contingency.It is manifest that in the case of a registered dealer the proceedings before the Commissioner starts factually when a return is made or when a notice is issued to him either under s. 10(3) or under s. 11(2) of the Act. The acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the Act. The obligation can be enforced by taking a suitable action under the Act. Taking of such an action may have the effect of initiating proceedings against the defaulter. The de- fault may be the occasion for initiating the proceedings, but the default itself proprio vigore cannot initiate pro- ceedings. Proceedings in respect of the assessment of the turnover for the relevant period cannot, therefore, be said to be pending before the Commissioner. Learned counsel for the respondent contends that the certificate of registration is itself a notice to the registered dealer to furnish his returns within the prescribed time. Reliance is placed upon Form 11 wherein under the appropriate column the particulars in regard to a dealers return and the date which he should submit it are given. The main purpose of the registration certificate is to localize dealers with taxable turnovers and to facilitate the collection of taxes. The registration certificate enables the dealer to carry on thefind it rather difficult to appreciate the reasoning on which the learned Judges distinguished the Full Bench decision. But the question of pendency of proceedings was not raised before the Division Bench and was not considered by it. For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return.Now let us apply the said legal position to the facts of Civil Appeal No. 101 of 1961. The appellant has to submit quarterly returns and assessments are made on the basis of the said returns ; that is to say, he has to be assessed for his turnover separately in respect of eachthe question of escape of assessment has to be considered on the ground that each quarter is a separate period for the assessment. For the year 1949-50 i.e., for the period from October 22, 1949 to November 9, 1950, he had to submit 4 returns for the four quarters. But he had submitted only one return on October 5, 1950 for one quarter. No assessment was made in respect of any of the four quarters. So the assessment proceedings must be held to be pending before the Commissioner only in respect of the quarter for which the appellant had made the return. In respect of the other quarters no proceedings could be said to be pending before the Commissioner. The Tribunal has no jurisdiction to issue a notice under s. 11-A with respect to the quarters other than that covered by the return made by thefar as Civil Appeal No. 102 of 1961 is concerned, the appellant had not submitted any returns for the year 1950-51 i.e., for the period from November 10, 1950 to October 31, 1951. The Assistant Commissioner of Sales-tax issued a notice to him on October 15, 1954 in Form XII purporting to be under s. 11 (4) of the Act. The said notice was within 3 years from October 16, 1951 which fell within the 4th quarter of the concerned year. Under s. 11-A of the Act the period of 3 years has to be calculated from the expiry of the period in regard whereto any turnover has escaped assessment. As the unit of assessment is a quarter, the period in s. 11-A can only mean a quarter and it cannot be further split up into months, weeks and days. The said period is the fourth quarter and it expired on October 31, 1951. If so, it follows that the Commissioner has jurisdiction to assess the turnover in respect of the entire fourth quarter as the notice was issued within three years from the expiry of the said quarter.But in this case the Commissioner assessed, the appellant in respect of the turnover of the entire year without showing separately the assessment of tax payable in respect of each quarter. We, cannot, therefore, confine the relief to be given to the appellant in these appeals to the period barred under s. 11-A of the Act. We would, therefore set aside the assessments in, both the appeals giving liberty to the respondent to make the assessment separately for the periods not barred under s. 11-A of the Act either because a return was filed, as in the first case or because the last quarter was within the period of three years, as in the second case.Iam therefore of opinion that the Sales Tax Officer does not contravene Art. 14 of the Constitution as contended for the appellant, if he takes action against a registered dealer under sub-section (2) or (4) of s. 11 even after the expiry of three years from the period whose turnover is to beassessed.It is to be noticed that the Act, as originally-enacted, did not have s. 11-A. -That was introduced in 1953 and made retrospective from June 1, 1947. Amendment was made in 1953 in s. 11 (5) and it made the period of limitation for proceeding to assess tax three years. No amendment providing limitation was however made in s. 11(2) and (4) in 1953. This must be deliberate and indicates the intention of the Legislature not to limit the period during which action can be taken under s. 11(2) andRegister of Cases in Form XIII of the Rules & Forms is for cases instituted under ss.10(3), 11, 11-A and 22-C of the Act. Its columns do not show when the assessment of tax proceedings commence. Still its column 14 is meant for Amount of penalty imposed, if any, with relevant section under which it is imposed and reference to defaulters list. This shows that the Sales Tax Officer maintains a list of registered dealers who had defaulted in not complying with the notices under s. 10(1) or 11(2) or under any other provision which makes the registered dealer liable to penalty. The maintenance of the defaulters list indicates that the Sales Tax Officer initiates proceedings for tax assessment prior to his issuing notices under s. 10(3) and that this must be after the expiry of the date for furnishing returns referred to in s.view of the opinion I have expressed above, it is not necessary to decide what the precise scope of the expression turnover escaping assessment in s. 11-A is. | 1 | 9,497 | 1,588 | ### 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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Officer commences the proceedings for assessment by the issue of a notice under sub-section (1) of s. 10, and, in the case of a registered dealer, the statute has already fixed the date for the furnishing of the return and therefore has set in motion the process for the assessment of the sales tax by the Sales Tax Officer. I do not see any good reason why the statutory notice to the registered dealer be not considered to be at par with the notice issued to the ordinary dealer by the Sales Tax Officer and why it should not be taken to initiate the assessment proceedings just as the issue of a notice by the Sales Tax Officer would have initiated the proceedings against the ordinary dealer. The failure of the registered dealer to furnish the return enables the Sales Tax Officer to assess the tax to the best of his judgment, of course, after giving an opportunity to the registered dealer of being heard. It would be incongruous if the Sales Tax Officer be held not to have initiated the assessment proceedings against the registered dealer and yet, on the failure of such a dealer to furnish the returns, to proceed in the very first instance to assess tax on the dealer to the best of his judgment. Such a power of taxing to the best of his judgment is an indication of the fact that the dealer had defaulted in respect of some proceedings connected with the assessment of tax and thus has made himself liable to tax on the best judgment basis instead of a tax on the computed amount of turnover ac- cording to the records. His default lies in his not submit- ting, the return of turnover and not depositing the tax due on the turnover shown in the return. The payment of tax as a result of the statutory notice under s. 10(1) and r. 19 well points to the conclusion that the statutory notice and rule initiate the assessment proceedings against the registered dealer at least from the date of the close of the quarter for which the turnover is to be furnished and tax is to be paid.The mere fact that the Sales Tax Officer cannot proceed against an unregistered dealer who, though liable to pay a tax, did not get himself registered, after the expiry of three years from the period the -turnover in which was liable to tax, cannot lead to the conclusion that the Sales Tax Officer cannot take necessary steps to assess a registered dealer under sub-section (2) and (4) of s. 11 after the expiry of three years from the period whose turnover he proceeds to assess, for the simple reason that s. 11 or any other provision of the Act does not lay down any such restriction on the Sales Tax Officers powers under these sub-sections.24. Such a power in the Sales Tax Officer does not contravene the provisions of Art. 14 of the Constitution. The registered dealer and the unregistered dealer belong to different classes. The former is one whose liability to tax is admitted. The other has admitted no such liability. The Sales Tax Officer can find out about the liability of the unregistered dealer to tax only by issuing a notice to him under sub-section (1) of s. 10 when he thinks that such a dealer might be liable to tax. It is only when the information in his possession is sufficiently strong and trustworthy as to satisfy him that a certain unregistered dealer is liable to by sales tax and has wilfully failed to apply for registration that he can take action under sub- section (5) of s. 11. The circumstances in which the Sales Tax Officer can take action against the unregistered dealer are different from the circumstances in which lie takes action against the registered dealer. I am therefore of opinion that the Sales Tax Officer does not contravene Art. 14 of the Constitution as contended for the appellant, if he takes action against a registered dealer under sub-section (2) or (4) of s. 11 even after the expiry of three years from the period whose turnover is to beassessed.It is to be noticed that the Act, as originally-enacted, did not have s. 11-A. -That was introduced in 1953 and made retrospective from June 1, 1947. Amendment was made in 1953 in s. 11 (5) and it made the period of limitation for proceeding to assess tax three years. No amendment providing limitation was however made in s. 11(2) and (4) in 1953. This must be deliberate and indicates the intention of the Legislature not to limit the period during which action can be taken under s. 11(2) and (4).25. The Register of Cases in Form XIII of the Rules & Forms is for cases instituted under ss.10(3), 11, 11-A and 22-C of the Act. Its columns do not show when the assessment of tax proceedings commence. Still its column 14 is meant for Amount of penalty imposed, if any, with relevant section under which it is imposed and reference to defaulters list. This shows that the Sales Tax Officer maintains a list of registered dealers who had defaulted in not complying with the notices under s. 10(1) or 11(2) or under any other provision which makes the registered dealer liable to penalty. The maintenance of the defaulters list indicates that the Sales Tax Officer initiates proceedings for tax assessment prior to his issuing notices under s. 10(3) and that this must be after the expiry of the date for furnishing returns referred to in s. 10(1).26. In view of the opinion I have expressed above, it is not necessary to decide what the precise scope of the expression turnover escaping assessment in s. 11-A is.27. It follows that the impugned notices were properly issued by the Assistant Commissioner of Sales Tax to the appellant and that these appeals fail. I would accordingly dismiss these appeals with costs.ORDER BY COURT28.
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said to be pending before the Commissioner. Learned counsel for the respondent contends that the certificate of registration is itself a notice to the registered dealer to furnish his returns within the prescribed time. Reliance is placed upon Form 11 wherein under the appropriate column the particulars in regard to a dealers return and the date which he should submit it are given. The main purpose of the registration certificate is to localize dealers with taxable turnovers and to facilitate the collection of taxes. The registration certificate enables the dealer to carry on thefind it rather difficult to appreciate the reasoning on which the learned Judges distinguished the Full Bench decision. But the question of pendency of proceedings was not raised before the Division Bench and was not considered by it. For the foregoing reasons we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return.Now let us apply the said legal position to the facts of Civil Appeal No. 101 of 1961. The appellant has to submit quarterly returns and assessments are made on the basis of the said returns ; that is to say, he has to be assessed for his turnover separately in respect of eachthe question of escape of assessment has to be considered on the ground that each quarter is a separate period for the assessment. For the year 1949-50 i.e., for the period from October 22, 1949 to November 9, 1950, he had to submit 4 returns for the four quarters. But he had submitted only one return on October 5, 1950 for one quarter. No assessment was made in respect of any of the four quarters. So the assessment proceedings must be held to be pending before the Commissioner only in respect of the quarter for which the appellant had made the return. In respect of the other quarters no proceedings could be said to be pending before the Commissioner. The Tribunal has no jurisdiction to issue a notice under s. 11-A with respect to the quarters other than that covered by the return made by thefar as Civil Appeal No. 102 of 1961 is concerned, the appellant had not submitted any returns for the year 1950-51 i.e., for the period from November 10, 1950 to October 31, 1951. The Assistant Commissioner of Sales-tax issued a notice to him on October 15, 1954 in Form XII purporting to be under s. 11 (4) of the Act. The said notice was within 3 years from October 16, 1951 which fell within the 4th quarter of the concerned year. Under s. 11-A of the Act the period of 3 years has to be calculated from the expiry of the period in regard whereto any turnover has escaped assessment. As the unit of assessment is a quarter, the period in s. 11-A can only mean a quarter and it cannot be further split up into months, weeks and days. The said period is the fourth quarter and it expired on October 31, 1951. If so, it follows that the Commissioner has jurisdiction to assess the turnover in respect of the entire fourth quarter as the notice was issued within three years from the expiry of the said quarter.But in this case the Commissioner assessed, the appellant in respect of the turnover of the entire year without showing separately the assessment of tax payable in respect of each quarter. We, cannot, therefore, confine the relief to be given to the appellant in these appeals to the period barred under s. 11-A of the Act. We would, therefore set aside the assessments in, both the appeals giving liberty to the respondent to make the assessment separately for the periods not barred under s. 11-A of the Act either because a return was filed, as in the first case or because the last quarter was within the period of three years, as in the second case.Iam therefore of opinion that the Sales Tax Officer does not contravene Art. 14 of the Constitution as contended for the appellant, if he takes action against a registered dealer under sub-section (2) or (4) of s. 11 even after the expiry of three years from the period whose turnover is to beassessed.It is to be noticed that the Act, as originally-enacted, did not have s. 11-A. -That was introduced in 1953 and made retrospective from June 1, 1947. Amendment was made in 1953 in s. 11 (5) and it made the period of limitation for proceeding to assess tax three years. No amendment providing limitation was however made in s. 11(2) and (4) in 1953. This must be deliberate and indicates the intention of the Legislature not to limit the period during which action can be taken under s. 11(2) andRegister of Cases in Form XIII of the Rules & Forms is for cases instituted under ss.10(3), 11, 11-A and 22-C of the Act. Its columns do not show when the assessment of tax proceedings commence. Still its column 14 is meant for Amount of penalty imposed, if any, with relevant section under which it is imposed and reference to defaulters list. This shows that the Sales Tax Officer maintains a list of registered dealers who had defaulted in not complying with the notices under s. 10(1) or 11(2) or under any other provision which makes the registered dealer liable to penalty. The maintenance of the defaulters list indicates that the Sales Tax Officer initiates proceedings for tax assessment prior to his issuing notices under s. 10(3) and that this must be after the expiry of the date for furnishing returns referred to in s.view of the opinion I have expressed above, it is not necessary to decide what the precise scope of the expression turnover escaping assessment in s. 11-A is.
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V.V.V. Satyanarayana Vs. G. Ramachandra Naidu & Others | June, 1956 in the Law Department. He was confirmed in the post of Assistant Secretary on 11 October, 1957. He was temporarily promoted as Deputy Secretary in the Law Department on 10 July 1961. His probation was declared on 23 July, 1962.Then he went to serve in the Law Commission as Deputy Secretary.4. The respondent Naidu was appointed as District Munsiff in the State Judicial Service on 16 February, 1956. On 27 June, 1960 he was appointed as Under Secretary in the Law Department. With the concurrence of the High Court he was temporarily appointed on 10 July, 1961 as Deputy Secretary in the Law Department.5. On 1 April, 1963 a substantive vacancy in the category of Deputy Secretary arose. The Government on 4, October, 1966 confirmed the respondent as a Deputy Secretary with effect from 1 April, 1963.6. The post of a Deputy Secretary under Rule 2 of the Andhra Pradesh State Legal Service Rules (hereinafter referred to as the Rules) is a post of Class III in that Service. Rules 2 and 3 of the Rules enumerate four classes of officers in the State Legal Service. Class I is for Secretary to Government, Law Department and Legal Remembrancer of Legal Affairs. Class II consists of Draftsman to Government, Law Department. Class III consists of Deputy Secretary to Government, Law Department. Class IV consists of Assistant Secretary to Government, Law Department.7. The appointment to Class III under the Rules shall be by promotion from among the Officers in Class IV or by recruitment by transfer of a full member or an approved probationer in the State Judicial Service in the post of Subordinate Judge or District Munsiff. The appointment to Class III is subject to two provisos. One is that an Assistant Secretary should ordinarily have put in a service for a period of not less than five years in that post for promotion as a Deputy Secretary. The other is that a member of the State Judicial Service so appointed as Deputy Secretary shall not, by reason of such appointment, cease to be a member of the service from which he was appointed, nor shall such appointment confer on him any claim for substantive appointment to Class III or to appointment thereto in any subsequent acting or temporary vacancy.8. In answering the question as to whether the Government was right in confirming the respondent as senior to the appellant it is necessary to find as to whether the respondent as appointed as Deputy Secretary on 10 July, 1961 by promotion from Class IV or by transfer of a full member or an approved probationer in the State Judicial Service. The respondent was a District Munsif in the State Judicial Service. On 10 July, 1961, when the respondent was appointed as Deputy Secretary in Class III he did not cease to be a member of the State Judicial Service in the category of District Munsif. He was then serving in the Law Department as an Under Secretary with a lien on his post in the State Judicial Service. He could not have been promoted from Class IV to Class III because as an Under Secretary he had not completed five years service in the Law Department. The order appointing the respondent Naidu does not specifically mention whether he was promoted or whether he was appointed by transfer. According to the Rules he could not have been promoted. The other mode of appointment was by transfer. The trial Court held that the appointment of the respondent was by promotion. The High Court rightly set aside the finding and held that the appointment of the respondent was by transfer.9. The proviso to Rule 29 (a) of the Andhra Pradesh State and Subordinate Rules provides that when more than one approved probationer are available for appointment as full members the senior most approved probationer on the date of vacancy shall be appointed. In the present case, when both the appellant and the respondent commenced their probation on the same date in the same class the proviso to rule 29 (a) is of no aid. There are no Rules to govern this class of cases.10. On behalf of the appellant it was said that the respondent was appointed on 10 July, 1961, but was confirmed with effect from 1 April, 1963 and, therefore, that should be taken as the date of appointment of the respondent. That is ignoring the fact that the respondent was appointed in fact by transfer on 10 July, 1961. The High Court rightly said that if both the appellant and the respondent completed the probation before 1 April, 1963 and if there are no Rules or Regulations in that behalf it will be open to the Government in the performance of its executive functions to consider the respective merits and determine the inter se seniority. The Government consulted the Public Service Commission. The Commission considered the respondent as suitable and agreed to his absorption as regular Deputy Secretary to Government, Law Department.11. In the second proviso to Rule 3 (3) of the State Legal Service Rules which was in force at the time of the appointment of the respondent as Deputy Secretary it is provided that of the two posts of Deputy Secretaries in the Law Department one post shall be held by a member of the State Judicial Service. At the time of the appointment of the respondent as Deputy Secretary in the Law Department on 10 July, 1961 he continued to be a member of the State Judicial Service. The benefit of any rights or privileges which had accrued by virtue of the first proviso to General Rule 3 prior to its deletion in January, 1963 cannot be denied to the respondent inasmuch as there could hardly be any doubt that the respondent would have been entitled to continue to hold the post reserved for the State judicial Officer and entitled to the benefits and privileges, including confirmation by virtue of the proviso to General Rule 3. | 0[ds]That is ignoring the fact that the respondent was appointed in fact by transfer on 10 July, 1961. The High Court rightly said that if both the appellant and the respondent completed the probation before 1 April, 1963 and if there are no Rules or Regulations in that behalf it will be open to the Government in the performance of its executive functions to consider the respective merits and determine the inter se seniority. The Government consulted the Public Service Commission. The Commission considered the respondent as suitable and agreed to his absorption as regular Deputy Secretary to Government, Law Department.11. In the second proviso to Rule 3 (3) of the State Legal Service Rules which was in force at the time of the appointment of the respondent as Deputy Secretary it is provided that of the two posts of Deputy Secretaries in the Law Department one post shall be held by a member of the State Judicial Service. At the time of the appointment of the respondent as Deputy Secretary in the Law Department on 10 July, 1961 he continued to be a member of the State Judicial Service. The benefit of any rights or privileges which had accrued by virtue of the first proviso to General Rule 3 prior to its deletion in January, 1963 cannot be denied to the respondent inasmuch as there could hardly be any doubt that the respondent would have been entitled to continue to hold the post reserved for the State judicial Officer and entitled to the benefits and privileges, including confirmation by virtue of the proviso to General Rule 3. | 0 | 1,140 | 288 | ### 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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June, 1956 in the Law Department. He was confirmed in the post of Assistant Secretary on 11 October, 1957. He was temporarily promoted as Deputy Secretary in the Law Department on 10 July 1961. His probation was declared on 23 July, 1962.Then he went to serve in the Law Commission as Deputy Secretary.4. The respondent Naidu was appointed as District Munsiff in the State Judicial Service on 16 February, 1956. On 27 June, 1960 he was appointed as Under Secretary in the Law Department. With the concurrence of the High Court he was temporarily appointed on 10 July, 1961 as Deputy Secretary in the Law Department.5. On 1 April, 1963 a substantive vacancy in the category of Deputy Secretary arose. The Government on 4, October, 1966 confirmed the respondent as a Deputy Secretary with effect from 1 April, 1963.6. The post of a Deputy Secretary under Rule 2 of the Andhra Pradesh State Legal Service Rules (hereinafter referred to as the Rules) is a post of Class III in that Service. Rules 2 and 3 of the Rules enumerate four classes of officers in the State Legal Service. Class I is for Secretary to Government, Law Department and Legal Remembrancer of Legal Affairs. Class II consists of Draftsman to Government, Law Department. Class III consists of Deputy Secretary to Government, Law Department. Class IV consists of Assistant Secretary to Government, Law Department.7. The appointment to Class III under the Rules shall be by promotion from among the Officers in Class IV or by recruitment by transfer of a full member or an approved probationer in the State Judicial Service in the post of Subordinate Judge or District Munsiff. The appointment to Class III is subject to two provisos. One is that an Assistant Secretary should ordinarily have put in a service for a period of not less than five years in that post for promotion as a Deputy Secretary. The other is that a member of the State Judicial Service so appointed as Deputy Secretary shall not, by reason of such appointment, cease to be a member of the service from which he was appointed, nor shall such appointment confer on him any claim for substantive appointment to Class III or to appointment thereto in any subsequent acting or temporary vacancy.8. In answering the question as to whether the Government was right in confirming the respondent as senior to the appellant it is necessary to find as to whether the respondent as appointed as Deputy Secretary on 10 July, 1961 by promotion from Class IV or by transfer of a full member or an approved probationer in the State Judicial Service. The respondent was a District Munsif in the State Judicial Service. On 10 July, 1961, when the respondent was appointed as Deputy Secretary in Class III he did not cease to be a member of the State Judicial Service in the category of District Munsif. He was then serving in the Law Department as an Under Secretary with a lien on his post in the State Judicial Service. He could not have been promoted from Class IV to Class III because as an Under Secretary he had not completed five years service in the Law Department. The order appointing the respondent Naidu does not specifically mention whether he was promoted or whether he was appointed by transfer. According to the Rules he could not have been promoted. The other mode of appointment was by transfer. The trial Court held that the appointment of the respondent was by promotion. The High Court rightly set aside the finding and held that the appointment of the respondent was by transfer.9. The proviso to Rule 29 (a) of the Andhra Pradesh State and Subordinate Rules provides that when more than one approved probationer are available for appointment as full members the senior most approved probationer on the date of vacancy shall be appointed. In the present case, when both the appellant and the respondent commenced their probation on the same date in the same class the proviso to rule 29 (a) is of no aid. There are no Rules to govern this class of cases.10. On behalf of the appellant it was said that the respondent was appointed on 10 July, 1961, but was confirmed with effect from 1 April, 1963 and, therefore, that should be taken as the date of appointment of the respondent. That is ignoring the fact that the respondent was appointed in fact by transfer on 10 July, 1961. The High Court rightly said that if both the appellant and the respondent completed the probation before 1 April, 1963 and if there are no Rules or Regulations in that behalf it will be open to the Government in the performance of its executive functions to consider the respective merits and determine the inter se seniority. The Government consulted the Public Service Commission. The Commission considered the respondent as suitable and agreed to his absorption as regular Deputy Secretary to Government, Law Department.11. In the second proviso to Rule 3 (3) of the State Legal Service Rules which was in force at the time of the appointment of the respondent as Deputy Secretary it is provided that of the two posts of Deputy Secretaries in the Law Department one post shall be held by a member of the State Judicial Service. At the time of the appointment of the respondent as Deputy Secretary in the Law Department on 10 July, 1961 he continued to be a member of the State Judicial Service. The benefit of any rights or privileges which had accrued by virtue of the first proviso to General Rule 3 prior to its deletion in January, 1963 cannot be denied to the respondent inasmuch as there could hardly be any doubt that the respondent would have been entitled to continue to hold the post reserved for the State judicial Officer and entitled to the benefits and privileges, including confirmation by virtue of the proviso to General Rule 3.
### Response:
0
### Explanation:
That is ignoring the fact that the respondent was appointed in fact by transfer on 10 July, 1961. The High Court rightly said that if both the appellant and the respondent completed the probation before 1 April, 1963 and if there are no Rules or Regulations in that behalf it will be open to the Government in the performance of its executive functions to consider the respective merits and determine the inter se seniority. The Government consulted the Public Service Commission. The Commission considered the respondent as suitable and agreed to his absorption as regular Deputy Secretary to Government, Law Department.11. In the second proviso to Rule 3 (3) of the State Legal Service Rules which was in force at the time of the appointment of the respondent as Deputy Secretary it is provided that of the two posts of Deputy Secretaries in the Law Department one post shall be held by a member of the State Judicial Service. At the time of the appointment of the respondent as Deputy Secretary in the Law Department on 10 July, 1961 he continued to be a member of the State Judicial Service. The benefit of any rights or privileges which had accrued by virtue of the first proviso to General Rule 3 prior to its deletion in January, 1963 cannot be denied to the respondent inasmuch as there could hardly be any doubt that the respondent would have been entitled to continue to hold the post reserved for the State judicial Officer and entitled to the benefits and privileges, including confirmation by virtue of the proviso to General Rule 3.
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KHODIYAAR ROLLING MILLS Vs. PASCHIM GUJARAT VIJ COMPANY LIMITED | Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 25th July, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.15454 of 2013 in and by which the High Court affirmed the order of the court below refusing to set aside the ex-parte decree passed by the trial court in Special Civil Suit No.56 of 2006. 3. The appellant was running a mill and the respondent was a distributer of the electricity for the area including the mill in the premises of the appellant. There was a outstanding due of Rs.63,41,994.20. The respondent filed Special Civil Suit No.56 of 2006 for recovery of the said outstanding amount. In the said suit the appellant has not entered appearance and an ex-parte decree was passed on 17th April, 2007. The appellant herein has filed an application under Order 9 Rule 13 of the C.P.C. to set aside the ex-parte decree which was filed with delay of twenty months and thirteen days. The Trial Court held that the appellant has not satisfactorily explained the delay of filing the said application under Order 9 Rule 13 of the C.P.C. and accordingly dismissed the same. In the revision the said order was affirmed by the High Court holding that the appellant had knowledge about passing of the ex-parte decree. 4. We have heard Mr. Jay Savla, learned counsel appearing for the appellant and Mr. Pradeep Misra, learned counsel appearing for the respondent and also perused the impugned judgment. 5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent. | 1[ds]5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent. | 1 | 328 | 57 | ### Instruction:
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Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 25th July, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.15454 of 2013 in and by which the High Court affirmed the order of the court below refusing to set aside the ex-parte decree passed by the trial court in Special Civil Suit No.56 of 2006. 3. The appellant was running a mill and the respondent was a distributer of the electricity for the area including the mill in the premises of the appellant. There was a outstanding due of Rs.63,41,994.20. The respondent filed Special Civil Suit No.56 of 2006 for recovery of the said outstanding amount. In the said suit the appellant has not entered appearance and an ex-parte decree was passed on 17th April, 2007. The appellant herein has filed an application under Order 9 Rule 13 of the C.P.C. to set aside the ex-parte decree which was filed with delay of twenty months and thirteen days. The Trial Court held that the appellant has not satisfactorily explained the delay of filing the said application under Order 9 Rule 13 of the C.P.C. and accordingly dismissed the same. In the revision the said order was affirmed by the High Court holding that the appellant had knowledge about passing of the ex-parte decree. 4. We have heard Mr. Jay Savla, learned counsel appearing for the appellant and Mr. Pradeep Misra, learned counsel appearing for the respondent and also perused the impugned judgment. 5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent.
### Response:
1
### Explanation:
5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent.
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Madan Lal Puri Vs. Sain Das Berry | the application for eviction on November 26, 1964, the landlord has made any demand from the tenant for payment of higher rent. Finally, the High Court having due regard to the above circumstances and the size of the family of the landlord and the findings recorded by the Tribunal on May 4, 1970 held that the decision of the two subordinate authorities dismissing the landlords application was erroneous. On the other hand, the learned Judge held that the landlord has made out his claim under clause (e) of the proviso to Section 14 (1) of the Act. On this reasoning the learned Judge reversed the decision of the Rent Controller and the Tribunal and allowed the application of the landlord for eviction of the appellant. The appellant was given six months time for vacating the premises. 8. Mr. Hardev Singh, learned counsel for the appellant, has very streneously urged that in view of the concurrent findings tribunals, there was no question of law, much less a substantial question of law arising for consideration before the High Court in the appeal filed by the landlord. Hence he urged that the interference by the High Court with the concurrent findings so recorded was not justified. Learned counsel further pointed out that the landlord has not made out his claim under clause (e) of the proviso to Section 14 (1) of the Act. Mr. Hardev Singh referred us to certain decisions of this Court dealing with the question, under what circumstances it can be considered that a substantial question of law arises. We do not think it necessary, in the circumstances of this case, to refer to those decisions, as in our opinion they have no bearing on the short question that arises for consideration before us, namely, the power of the High Court under Section 39, to consider the correctness of a finding regarding bona fide requirement under clause (e) of the proviso to Section 14 (1) of the Act. 9. As we have already pointed out, the sole question that has to be decided by us is whether the High Court in reversing the decisions of the Rent Controller and the Tribunal, in the circumstances of this case, can be considered to have exceeded its jurisdiction under Section 39 (2). We are satisfied that the High Court has not exceeded its jurisdiction in any manner. 10. The argument of Mr. Hardev Singh that the High Court has exceeded its jurisdiction under Section 39 (2) of the Act when it reversed the finding of the two subordinate authorities on the question of bona fide requirement has, in our opinion, no substance. In Smt. Kamla Soni v. Rup Lal Mehra, Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), this Court observed as follows :". . . . .whether on the facts proved the requirement of the landlord is bona fide, within the meaning of Section 14 (1) (e) is a finding on a mixed question of law and fact. . . ." From the above observations it is clear that an inference drawn by the subordinate authorities that the requirement of the respondent was not bona fide, could not be regarded as conclusive. The High Court, in proper cases, has ample jurisdiction to interfere with that finding and record its own conclusions on the basis of the materials on record. 11. We may also point out that in the case before us the position is made worse for the appellant in view of the finding recorded by the Tribunal in favour of the landlord on May 4, 1970. We have already pointed out the circumstances under which a finding was called for by the High Court. The High Court has accepted those findings and held in favour of the landlord that he has made out a case under clause (e) of the proviso to Section 14 (1) of the Act. 12. Mr. Hardev Singh referred us to the decision of this Court reported in Bhagwan Dass v. S. Rajdev Singh, AIR 1970 SC 986 , wherein it has been observed :". . . .A second appeal lies to the High Court against the decision of the Rent Control Tribunal under Section 39 (2) of the Delhi Rent Control Act, 1958, only if the appeal involves some substantial question of law. The Rent Controller and the Rent Control Tribunal, on a consideration of the relevant terms of the agreement and oral evidence and the circumstances found that a clear case of sub-letting was established. On that finding no question of law, much less a substantial question of law, arose." 13. The first part of the above extract lays down the nature of the jurisdiction exercised by the High Court under Section 39 (2) of the Act. In that decision, on facts, it was found both by the Rent Controller and the Tribunal, on a relevant consideration of the materials on record, that a case of sub-letting was established. On such a finding concurrently arrived at by both the authorities, it was held by this Court that no question of law, much less a substantial question of law arose for consideration before the High Court. 14. But the facts in the case before us are entirely different. We have already pointed out that the question that fell to be considered by the High Court was whether the claim made by the landlord under clause (e) of the proviso to Section 14 (1) of the Act was bona fide. As already pointed out, this Court, in Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), has held that a finding on such an issue is not one of fact alone but is a finding on mixed question of law and fact, and that it was open to the High Court when exercising its jurisdiction under Section 39 (2) of the Act, to consider the correctness or otherwise of such a finding. The findings recorded on such an issue by the subordinate tribunals are not conclusive. | 0[ds]13. The first part of the above extract lays down the nature of the jurisdiction exercised by the High Court under Section 39 (2) of the Act. In that decision, on facts, it was found both by the Rent Controller and the Tribunal, on a relevant consideration of the materials on record, that a case of sub-letting was established. On such a finding concurrently arrived at by both the authorities, it was held by this Court that no question of law, much less a substantial question of law arose for consideration before the High Court14. But the facts in the case before us are entirely different. We have already pointed out that the question that fell to be considered by the High Court was whether the claim made by the landlord under clause (e) of the proviso to Section 14 (1) of the Act was bona fide. As already pointed out, this Court, in Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), has held that a finding on such an issue is not one of fact alone but is a finding on mixed question of law and fact, and that it was open to the High Court when exercising its jurisdiction under Section 39 (2) of the Act, to consider the correctness or otherwise of such a finding. The findings recorded on such an issue by the subordinate tribunals are not conclusiveWe do not think it necessary, in the circumstances of this case, to refer to those decisions, as in our opinion they have no bearing on the short question that arises for consideration before us, namely, the power of the High Court under Section 39, to consider the correctness of a finding regarding bona fide requirement under clause (e) of the proviso to Section 14 (1) of the ActWe are satisfied that the High Court has not exceeded its jurisdiction in any manner10. The argument of Mr. Hardev Singh that the High Court has exceeded its jurisdiction under Section 39 (2) of the Act when it reversed the finding of the two subordinate authorities on the question of bona fide requirement has, in our opinion, no substanceFrom the above observations it is clear that an inference drawn by the subordinate authorities that the requirement of the respondent was not bona fide, could not be regarded as conclusive. The High Court, in proper cases, has ample jurisdiction to interfere with that finding and record its own conclusions on the basis of the materials on record. | 0 | 2,530 | 470 | ### Instruction:
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the application for eviction on November 26, 1964, the landlord has made any demand from the tenant for payment of higher rent. Finally, the High Court having due regard to the above circumstances and the size of the family of the landlord and the findings recorded by the Tribunal on May 4, 1970 held that the decision of the two subordinate authorities dismissing the landlords application was erroneous. On the other hand, the learned Judge held that the landlord has made out his claim under clause (e) of the proviso to Section 14 (1) of the Act. On this reasoning the learned Judge reversed the decision of the Rent Controller and the Tribunal and allowed the application of the landlord for eviction of the appellant. The appellant was given six months time for vacating the premises. 8. Mr. Hardev Singh, learned counsel for the appellant, has very streneously urged that in view of the concurrent findings tribunals, there was no question of law, much less a substantial question of law arising for consideration before the High Court in the appeal filed by the landlord. Hence he urged that the interference by the High Court with the concurrent findings so recorded was not justified. Learned counsel further pointed out that the landlord has not made out his claim under clause (e) of the proviso to Section 14 (1) of the Act. Mr. Hardev Singh referred us to certain decisions of this Court dealing with the question, under what circumstances it can be considered that a substantial question of law arises. We do not think it necessary, in the circumstances of this case, to refer to those decisions, as in our opinion they have no bearing on the short question that arises for consideration before us, namely, the power of the High Court under Section 39, to consider the correctness of a finding regarding bona fide requirement under clause (e) of the proviso to Section 14 (1) of the Act. 9. As we have already pointed out, the sole question that has to be decided by us is whether the High Court in reversing the decisions of the Rent Controller and the Tribunal, in the circumstances of this case, can be considered to have exceeded its jurisdiction under Section 39 (2). We are satisfied that the High Court has not exceeded its jurisdiction in any manner. 10. The argument of Mr. Hardev Singh that the High Court has exceeded its jurisdiction under Section 39 (2) of the Act when it reversed the finding of the two subordinate authorities on the question of bona fide requirement has, in our opinion, no substance. In Smt. Kamla Soni v. Rup Lal Mehra, Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), this Court observed as follows :". . . . .whether on the facts proved the requirement of the landlord is bona fide, within the meaning of Section 14 (1) (e) is a finding on a mixed question of law and fact. . . ." From the above observations it is clear that an inference drawn by the subordinate authorities that the requirement of the respondent was not bona fide, could not be regarded as conclusive. The High Court, in proper cases, has ample jurisdiction to interfere with that finding and record its own conclusions on the basis of the materials on record. 11. We may also point out that in the case before us the position is made worse for the appellant in view of the finding recorded by the Tribunal in favour of the landlord on May 4, 1970. We have already pointed out the circumstances under which a finding was called for by the High Court. The High Court has accepted those findings and held in favour of the landlord that he has made out a case under clause (e) of the proviso to Section 14 (1) of the Act. 12. Mr. Hardev Singh referred us to the decision of this Court reported in Bhagwan Dass v. S. Rajdev Singh, AIR 1970 SC 986 , wherein it has been observed :". . . .A second appeal lies to the High Court against the decision of the Rent Control Tribunal under Section 39 (2) of the Delhi Rent Control Act, 1958, only if the appeal involves some substantial question of law. The Rent Controller and the Rent Control Tribunal, on a consideration of the relevant terms of the agreement and oral evidence and the circumstances found that a clear case of sub-letting was established. On that finding no question of law, much less a substantial question of law, arose." 13. The first part of the above extract lays down the nature of the jurisdiction exercised by the High Court under Section 39 (2) of the Act. In that decision, on facts, it was found both by the Rent Controller and the Tribunal, on a relevant consideration of the materials on record, that a case of sub-letting was established. On such a finding concurrently arrived at by both the authorities, it was held by this Court that no question of law, much less a substantial question of law arose for consideration before the High Court. 14. But the facts in the case before us are entirely different. We have already pointed out that the question that fell to be considered by the High Court was whether the claim made by the landlord under clause (e) of the proviso to Section 14 (1) of the Act was bona fide. As already pointed out, this Court, in Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), has held that a finding on such an issue is not one of fact alone but is a finding on mixed question of law and fact, and that it was open to the High Court when exercising its jurisdiction under Section 39 (2) of the Act, to consider the correctness or otherwise of such a finding. The findings recorded on such an issue by the subordinate tribunals are not conclusive.
### Response:
0
### Explanation:
13. The first part of the above extract lays down the nature of the jurisdiction exercised by the High Court under Section 39 (2) of the Act. In that decision, on facts, it was found both by the Rent Controller and the Tribunal, on a relevant consideration of the materials on record, that a case of sub-letting was established. On such a finding concurrently arrived at by both the authorities, it was held by this Court that no question of law, much less a substantial question of law arose for consideration before the High Court14. But the facts in the case before us are entirely different. We have already pointed out that the question that fell to be considered by the High Court was whether the claim made by the landlord under clause (e) of the proviso to Section 14 (1) of the Act was bona fide. As already pointed out, this Court, in Civil Appeal No. 2150 of 1966, D/- 26-9-1969 (SC), has held that a finding on such an issue is not one of fact alone but is a finding on mixed question of law and fact, and that it was open to the High Court when exercising its jurisdiction under Section 39 (2) of the Act, to consider the correctness or otherwise of such a finding. The findings recorded on such an issue by the subordinate tribunals are not conclusiveWe do not think it necessary, in the circumstances of this case, to refer to those decisions, as in our opinion they have no bearing on the short question that arises for consideration before us, namely, the power of the High Court under Section 39, to consider the correctness of a finding regarding bona fide requirement under clause (e) of the proviso to Section 14 (1) of the ActWe are satisfied that the High Court has not exceeded its jurisdiction in any manner10. The argument of Mr. Hardev Singh that the High Court has exceeded its jurisdiction under Section 39 (2) of the Act when it reversed the finding of the two subordinate authorities on the question of bona fide requirement has, in our opinion, no substanceFrom the above observations it is clear that an inference drawn by the subordinate authorities that the requirement of the respondent was not bona fide, could not be regarded as conclusive. The High Court, in proper cases, has ample jurisdiction to interfere with that finding and record its own conclusions on the basis of the materials on record.
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MANDEEP KUMAR AND OTHERS Vs. U.T. CHANDIGARH & OTHERS | candidate against a reserved vacancy, preference was given to Backward Classes candidates and vice versa, over other general candidates. This inter- changeability of reserved vacancies was withdrawn – vide para 4 of Punjab Government letter No. 13565- 4WG1-64/23892 dated 11th November, 1964, with the result that if a reserved vacancy is not filled by the candidate belonging to the particular category for which it is reserved it is carried forward in accordance with the current instructions, or, if this is not possible, it is thrown open to other generally. 2. This matter has been engaging the attention of Government for some time past and it has now been decided that after the carry forward rule has been exhausted and a suitable scheduled cast candidate has still not become available, a vacancy reserved for this category should first of all be offered to a candidate belonging to the Backward Classes, before it is thrown open for general recruitment. In case a Backward Class candidate avails of such a vacancy, the vacancy properly reserved for a Backward Class candidate later in the roster would then go to a Scheduled Caste candidate instead. 3. The receipt of this communication may please be acknowledged. 19. The clarification as issued vide letter No. 2/246/78- SW3/7416 dated 10.12.1979 written by the Secretary to Government of Punjab, Scheduled Caste and Backward Classes to all heads of Departments is also relevant however, reproduced as under: Subject: Reservation in services for members of Scheduled Castes and Backward Classes- Interchangeability of reserved posts between them. I am directed to invite a reference of Punjab Government letter No. 1346-SW1-74/11491 dated 20th June, 1994 and letter No. 771-SW1-76 dated 6th April, 1976, on the subject noted above, and to say while giving the benefits of interchangeability to a backward Class candidate and vice-versa, the Department do not obtain no-objection certificate from the Department of Welfare of Scheduled Castes and Backward Classes despite clear provision in the instructions. To make it clear, under the instructions, no-objection certificate is a must before the vacancy meant for Scheduled Castes person is offered to a Backward Class candidate and vice-versa. 2. Its receipt may please be acknowledged. 20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal. | 0[ds]16. From the bare reading of the aforesaid, it is clear that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal. | 0 | 4,565 | 814 | ### 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:
candidate against a reserved vacancy, preference was given to Backward Classes candidates and vice versa, over other general candidates. This inter- changeability of reserved vacancies was withdrawn – vide para 4 of Punjab Government letter No. 13565- 4WG1-64/23892 dated 11th November, 1964, with the result that if a reserved vacancy is not filled by the candidate belonging to the particular category for which it is reserved it is carried forward in accordance with the current instructions, or, if this is not possible, it is thrown open to other generally. 2. This matter has been engaging the attention of Government for some time past and it has now been decided that after the carry forward rule has been exhausted and a suitable scheduled cast candidate has still not become available, a vacancy reserved for this category should first of all be offered to a candidate belonging to the Backward Classes, before it is thrown open for general recruitment. In case a Backward Class candidate avails of such a vacancy, the vacancy properly reserved for a Backward Class candidate later in the roster would then go to a Scheduled Caste candidate instead. 3. The receipt of this communication may please be acknowledged. 19. The clarification as issued vide letter No. 2/246/78- SW3/7416 dated 10.12.1979 written by the Secretary to Government of Punjab, Scheduled Caste and Backward Classes to all heads of Departments is also relevant however, reproduced as under: Subject: Reservation in services for members of Scheduled Castes and Backward Classes- Interchangeability of reserved posts between them. I am directed to invite a reference of Punjab Government letter No. 1346-SW1-74/11491 dated 20th June, 1994 and letter No. 771-SW1-76 dated 6th April, 1976, on the subject noted above, and to say while giving the benefits of interchangeability to a backward Class candidate and vice-versa, the Department do not obtain no-objection certificate from the Department of Welfare of Scheduled Castes and Backward Classes despite clear provision in the instructions. To make it clear, under the instructions, no-objection certificate is a must before the vacancy meant for Scheduled Castes person is offered to a Backward Class candidate and vice-versa. 2. Its receipt may please be acknowledged. 20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal.
### Response:
0
### Explanation:
16. From the bare reading of the aforesaid, it is clear that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.20. From the above it is clear that as per Section 7 of 2006 Act, de-reservation for the reserved vacancy by the appointing authority is restricted. The said de-reservation may be possibly directed by the Department of Welfare of Scheduled Castes and Backward Classes if it is expedient in public interest after recording satisfaction for such de- reservation. In the said contingency the department shall pass an order assigning those reasons. Thus, in the context of 2006 Act also the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority. If we examine the Policy letter No. 1945-WG-54-17246 which was withdrawn on 11.11.1964, later restored vide letter dated 20.06.1974 makes it clear that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act. Therefore, in the net result, the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority. In the said context, the letters returned by the Education Department in favour of the appellants to the department concerned are not of much relevance in particular when the department concerned have not agreed upon the request of interchangeability of the unfilled posts of SC/ST category and refused to accept the request of the appointing authority. In addition to the aforesaid it is required to be observed in the manner in which the protest was started by the candidates of the OBC category was not justified. The High Court has rightly observed that steps taken by the protestors were unfortunate, improper and incorrect. The suo moto PIL No. 108-2019 was entertained to save the life of protesting youth, and it should not be influenced by misplaced notions and they may be counselled or guided by the authorities. However, after issuing the direction, the candidates of the OBC category were appointed in terms of their merit. Thereafter, by filing the miscellaneous applications and subsequent writ petitions the relief to fill up the vacant posts of SC/ST category from the candidates of the Backward Classes has been pressed upon, which has been rejected by the High Court by the order impugned. At this stage it cannot be lost sight that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. In our considered opinion, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability. It is to observe that rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter No. 17246 would not confer any right to appellants to claim the reliefs. Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category. Therefore, the argument advanced by learned senior counsel Mr. Patwalia in this regard is hereby repelled. As stated by the respondent, the process to fill up the vacant posts of ETT in the state has already been advertised, which is in accordance to law. Therefore, in view of the discussion made hereinabove, we are not inclined to grant the relief as prayed in this appeal.
|
Commissioner of Income Tax, West Bengal I Vs. Birla Cotton Spinning & Weaving Mills Ltd. & Another | was undertaken "wholly and exclusively" for the purpose of the trade in that the reduction in the amount of tax increased the traders monetary resources and so promoted the carrying on of the trade and the earning of the trading profits. (See also Simons Income-tax, Second Edition, Vol. 2, pages 216-217). In Commissioner of Income-Tax, Calcutta v. Calcutta Landing and shipping Co. Ltd, 77 ITR 575 = (AIR 1969 Cal 171 ) the Calcutta High Court has sought to distinguish the language of Section 10 (2) (xv) from that of the provisions in the English Income-tax law and has given weighty reasons for accepting the opinion of Viscount Simon and Lord Oaksey, particularly, because of the observations of this Court in the decisions which we have already noticed. The above case was followed by a full Bench of the Bombay High Court in R. B. Bansilal Abirchan Spinning and Weaving Mills v. Commr. of Income-tax Poona, 81 ITR 34 = (1971 Tax L. R. 827) (Bom).8. Learned counsel for the Revenue has relied upon the observations extracted at an earlier stage from the case of Travancore Titanium Product Ltd., 60 ITR 277 = (AIR 1966 SC 1250 ) and has argued that there must be a direct and intimate connection between the expenditure of the business i.e. between the expenditure and the character of the assessee as a trader and not as an owner of assets. We are unable to appreciate how these observations which were made in the light of different facts in any way militate against the view of Viscount Simon and Lord Oaksey in Smith Potato Estate case, (1948) 30 Tax Case 267 as also the decision of the Calcutta High Court in Calcutta Landing and Shipping Co. case, 77 ITR 575 = (AIR 1969 Cal 171 ). It may be pointed out that in the decision relied upon by the Revenue the question was whether the tax imposed under the Wealth Tax Act on the owner of assets was a permissible deduction under Section 10 (2) (xv) of the Act. It was emphasised by this Court that the charge of the tax was the same whether the assets were part of or used in the trading organisation of the owner or were merely owned by him. The assets of the tax-payer whether incorporated or not become chargeable to tax because they were owned by him and not because they were used by him in the business. The position is quite different when it has to be decided whether an allowance contemplated in Section 10 (2) (xv). deductible.9. The essential test which has to be applied is whether the expenses were incurred for the preservation and protection of the assessees business from any such process or proceedings which might have resulted in the reduction of its income and profits and whether the same were actually and honestly incurred. It is not possible to understand how the expenditure on the proceedings in respect of the Investigation Commission by the assessee will not fall within the above rule. Even otherwise the expenditure was incidental to the business and was necessitated or justified by commercial expediency. It must be remembered that the earning of profits and the payment of taxes are not isolated and independent activities of a business. These activities are continuous and take place from year to year during the whole period for which the business continues. If the assessee takes any steps for reducing its liability to tax which result in more funds being left for the purpose of carrying on the business there is always a possibility of higher profits. To give an illustration, if an assessee can, by an appropriate proceedings succeed in getting its tax liability for gains and profits reduced by a sum of Rs. 1,00,000/- that amount will essentially become available for the purpose of business with a reasonable expectation of more profits. As was observed by Viscount Simon in Smith Potato Estate case, (1948) 30 Tax Cas 267 if the trader considers that the Revenue seeks to take too large a share and to leave him with too little the expenditure which the trader incurs in endeavouring to correct this mistake is a disbursement laid out for the purposes of his trade. If he succeeds he will have more money with which to earn profits next year.10. The High Court in the judgment under appeal, after a discussion of the relevant case law, approached the matter in this way. The proceeding before the Investigation Commission is not a civil proceeding; but it is a statutory proceedings with a view to collecting materials for more taxation. Therefore if the proceeding touched the business of assessee the expenditure incurred by the assessee in safeguarding its interest before the Commission would be an allowable deduction. It was pointed out - and this was based on the material on the record- that the Commission was holding an investigation on a suspected escapement of income to the tune of about Rupees 4 crores. Taxes levied on that income and the penalties imposed would naturally have been very heavy for the business of the assessee and might have either crippled or annihilated it. To preserve the business from an investigation which, according to the assessee, was unlawful the assessee was justified in taking proper steps and spending monies therefor. Such an expenditure was no doubt for earning profits but was aimed at preservation of business from the inroads of piece of legislation which, it was maintained, was unconstitutional and was so held by this Court later in certain decisions that have already been mentioned. The expenditure which was incurred by the assessee in opposing a coercive governmental action with the object of saving taxation and safeguarding business was justified by commercial expediency and was, therefore, allowable under Section 10 (2) (xv) of the Act. We have no doubt that the above approach of the High Court and its ultimate decision were fully justified on principle and authority. | 0[ds]It is well settled by now that the deductibility of expenditure incurred in prosecuting the civil proceedings to resist the enforcement of a measure, legislative or executive, which means restriction on the carrying on of a business or to obtain a declaration that the measure is invalid, would, if other conditions are satisfied, be admissible as a deduction under section 10 (2) (xv). Deductibility of such expenditure does not depend on the final outcome of those proceedings. However, wrong-headed, ill-advised, unduly optimistic or over confident in his conviction the assessee might appear in the light of the ultimate decision, expenditure in prosecuting a civil proceeding cannot be denied as a permissible deduction if it is reasonably and honestly incurred to promote the interest of theare unable to appreciate how these observations which were made in the light of different facts in any way militate against the view of Viscount Simon and Lord Oaksey in Smith Potato Estate case, (1948) 30 Tax Case 267 as also the decision of the Calcutta High Court in Calcutta Landing and Shipping Co. case, 77 ITR 575 = (AIR 1969 Cal 171 ). It may be pointed out that in the decision relied upon by the Revenue the question was whether the tax imposed under the Wealth Tax Act on the owner of assets was a permissible deduction under Section 10 (2) (xv) of the Act. It was emphasised by this Court that the charge of the tax was the same whether the assets were part of or used in the trading organisation of the owner or were merely owned by him. The assets of the tax-payer whether incorporated or not become chargeable to tax because they were owned by him and not because they were used by him in the business. The position is quite different when it has to be decided whether an allowance contemplated in Section 10 (2) (xv). deductible.9. The essential test which has to be applied is whether the expenses were incurred for the preservation and protection of the assessees business from any such process or proceedings which might have resulted in the reduction of its income and profits and whether the same were actually and honestly incurred. It is not possible to understand how the expenditure on the proceedings in respect of the Investigation Commission by the assessee will not fall within the above rule. Even otherwise the expenditure was incidental to the business and was necessitated or justified by commercial expediency. It must be remembered that the earning of profits and the payment of taxes are not isolated and independent activities of a business. These activities are continuous and take place from year to year during the whole period for which the business continues. If the assessee takes any steps for reducing its liability to tax which result in more funds being left for the purpose of carrying on the business there is always a possibility of higher profits. To give an illustration, if an assessee can, by an appropriate proceedings succeed in getting its tax liability for gains and profits reduced by a sum of Rs. 1,00,000/- that amount will essentially become available for the purpose of business with a reasonable expectation of more profits. As was observed by Viscount Simon in Smith Potato Estate case, (1948) 30 Tax Cas 267 if the trader considers that the Revenue seeks to take too large a share and to leave him with too little the expenditure which the trader incurs in endeavouring to correct this mistake is a disbursement laid out for the purposes of his trade. If he succeeds he will have more money with which to earn profits next year.10. The High Court in the judgment under appeal, after a discussion of the relevant case law, approached the matter in this way. The proceeding before the Investigation Commission is not a civil proceeding; but it is a statutory proceedings with a view to collecting materials for more taxation. Therefore if the proceeding touched the business of assessee the expenditure incurred by the assessee in safeguarding its interest before the Commission would be an allowable deduction. It was pointed out - and this was based on the material on the record- that the Commission was holding an investigation on a suspected escapement of income to the tune of about Rupees 4 crores. Taxes levied on that income and the penalties imposed would naturally have been very heavy for the business of the assessee and might have either crippled or annihilated it. To preserve the business from an investigation which, according to the assessee, was unlawful the assessee was justified in taking proper steps and spending monies therefor. Such an expenditure was no doubt for earning profits but was aimed at preservation of business from the inroads of piece of legislation which, it was maintained, was unconstitutional and was so held by this Court later in certain decisions that have already been mentioned. The expenditure which was incurred by the assessee in opposing a coercive governmental action with the object of saving taxation and safeguarding business was justified by commercial expediency and was, therefore, allowable under Section 10 (2) (xv) of the Act. We have no doubt that the above approach of the High Court and its ultimate decision were fully justified on principle and authority.The expression "for the purpose of the business" is essentially wider than the expression "for the purpose of earning profits." It covers not only the running of the business or its administration but also measures for the preservation of the business and protection of its assets and property. It may legitimately comprehend many other acts incidental to the carrying on of the business. In Travancore Titanium Product Ltd. V. Commr. ofKerala, 60 ITR 277 at p. 282 = (AIR 1966 SC 1250 ) the position relating to expenditure which can be deducted under S. 10 (2) (xv) of the Act was summarisednature of the expenditure or outgoing must be adjudged in the light of accepted commercial practice and trading principles. The expenditure must be incidental to the business and must be necessitated or justified by commercial expediency. It must be directly and intimately connected with the business and be laid out by the taxpayer in his character as a trader. To be a permissible deduction there must be a direct and intimate connection between the expenditure and the business, i.e. between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of theis well settled by now that the deductibility of expenditure incurred in prosecuting the civil proceedings to resist the enforcement of a measure, legislative or executive, which means restriction on the carrying on of a business or to obtain a declaration that the measure is invalid, would, if other conditions are satisfied, be admissible as a deduction under section 10 (2) (xv). Deductibility of such expenditure does not depend on the final outcome of those proceedings. However,, unduly optimistic or over confident in his conviction the assessee might appear in the light of the ultimate decision, expenditure in prosecuting a civil proceeding cannot be denied as a permissible deduction if it is reasonably and honestly incurred to promote the interest of thebusiness. (See Sree Meenakshi Mills Ltd. V. Commissioner ofMadras 63 ITR 207 = (AIR 1967 SCe unable to appreciate how these observations which were made in the light of different facts in any way militate against the view of Viscount Simon and Lord Oaksey in Smith Potato Estate case, (1948) 30 Tax Case 267 as also the decision of the Calcutta High Court in Calcutta Landing and Shipping Co. case, 77 ITR 575 = (AIR 1969 Cal 171 ). It may be pointed out that in the decision relied upon by the Revenue the question was whether the tax imposed under the Wealth Tax Act on the owner of assets was a permissible deduction under Section 10 (2) (xv) of the Act. It was emphasised by this Court that the charge of the tax was the same whether the assets were part of or used in the trading organisation of the owner or were merely owned by him. The assets of thewhether incorporated or not become chargeable to tax because they were owned by him and not because they were used by him in the business. The position is quite different when it has to be decided whether an allowance contemplated in Section 10 (2) (xv). deductible.9. The essential test which has to be applied is whether the expenses were incurred for the preservation and protection of the assessees business from any such process or proceedings which might have resulted in the reduction of its income and profits and whether the same were actually and honestly incurred. It is not possible to understand how the expenditure on the proceedings in respect of the Investigation Commission by the assessee will not fall within the above rule. Even otherwise the expenditure was incidental to the business and was necessitated or justified by commercial expediency. It must be remembered that the earning of profits and the payment of taxes are not isolated and independent activities of a business. These activities are continuous and take place from year to year during the whole period for which the business continues. If the assessee takes any steps for reducing its liability to tax which result in more funds being left for the purpose of carrying on the business there is always a possibility of higher profits. To give an illustration, if an assessee can, by an appropriate proceedings succeed in getting its tax liability for gains and profits reduced by a sum of Rs. 1,00,000/that amount will essentially become available for the purpose of business with a reasonable expectation of more profits. As was observed by Viscount Simon in Smith Potato Estate case, (1948) 30 Tax Cas 267 if the trader considers that the Revenue seeks to take too large a share and to leave him with too little the expenditure which the trader incurs in endeavouring to correct this mistake is a disbursement laid out for the purposes of his trade. If he succeeds he will have more money with which to earn profits next year. | 0 | 2,600 | 1,860 | ### 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:
was undertaken "wholly and exclusively" for the purpose of the trade in that the reduction in the amount of tax increased the traders monetary resources and so promoted the carrying on of the trade and the earning of the trading profits. (See also Simons Income-tax, Second Edition, Vol. 2, pages 216-217). In Commissioner of Income-Tax, Calcutta v. Calcutta Landing and shipping Co. Ltd, 77 ITR 575 = (AIR 1969 Cal 171 ) the Calcutta High Court has sought to distinguish the language of Section 10 (2) (xv) from that of the provisions in the English Income-tax law and has given weighty reasons for accepting the opinion of Viscount Simon and Lord Oaksey, particularly, because of the observations of this Court in the decisions which we have already noticed. The above case was followed by a full Bench of the Bombay High Court in R. B. Bansilal Abirchan Spinning and Weaving Mills v. Commr. of Income-tax Poona, 81 ITR 34 = (1971 Tax L. R. 827) (Bom).8. Learned counsel for the Revenue has relied upon the observations extracted at an earlier stage from the case of Travancore Titanium Product Ltd., 60 ITR 277 = (AIR 1966 SC 1250 ) and has argued that there must be a direct and intimate connection between the expenditure of the business i.e. between the expenditure and the character of the assessee as a trader and not as an owner of assets. We are unable to appreciate how these observations which were made in the light of different facts in any way militate against the view of Viscount Simon and Lord Oaksey in Smith Potato Estate case, (1948) 30 Tax Case 267 as also the decision of the Calcutta High Court in Calcutta Landing and Shipping Co. case, 77 ITR 575 = (AIR 1969 Cal 171 ). It may be pointed out that in the decision relied upon by the Revenue the question was whether the tax imposed under the Wealth Tax Act on the owner of assets was a permissible deduction under Section 10 (2) (xv) of the Act. It was emphasised by this Court that the charge of the tax was the same whether the assets were part of or used in the trading organisation of the owner or were merely owned by him. The assets of the tax-payer whether incorporated or not become chargeable to tax because they were owned by him and not because they were used by him in the business. The position is quite different when it has to be decided whether an allowance contemplated in Section 10 (2) (xv). deductible.9. The essential test which has to be applied is whether the expenses were incurred for the preservation and protection of the assessees business from any such process or proceedings which might have resulted in the reduction of its income and profits and whether the same were actually and honestly incurred. It is not possible to understand how the expenditure on the proceedings in respect of the Investigation Commission by the assessee will not fall within the above rule. Even otherwise the expenditure was incidental to the business and was necessitated or justified by commercial expediency. It must be remembered that the earning of profits and the payment of taxes are not isolated and independent activities of a business. These activities are continuous and take place from year to year during the whole period for which the business continues. If the assessee takes any steps for reducing its liability to tax which result in more funds being left for the purpose of carrying on the business there is always a possibility of higher profits. To give an illustration, if an assessee can, by an appropriate proceedings succeed in getting its tax liability for gains and profits reduced by a sum of Rs. 1,00,000/- that amount will essentially become available for the purpose of business with a reasonable expectation of more profits. As was observed by Viscount Simon in Smith Potato Estate case, (1948) 30 Tax Cas 267 if the trader considers that the Revenue seeks to take too large a share and to leave him with too little the expenditure which the trader incurs in endeavouring to correct this mistake is a disbursement laid out for the purposes of his trade. If he succeeds he will have more money with which to earn profits next year.10. The High Court in the judgment under appeal, after a discussion of the relevant case law, approached the matter in this way. The proceeding before the Investigation Commission is not a civil proceeding; but it is a statutory proceedings with a view to collecting materials for more taxation. Therefore if the proceeding touched the business of assessee the expenditure incurred by the assessee in safeguarding its interest before the Commission would be an allowable deduction. It was pointed out - and this was based on the material on the record- that the Commission was holding an investigation on a suspected escapement of income to the tune of about Rupees 4 crores. Taxes levied on that income and the penalties imposed would naturally have been very heavy for the business of the assessee and might have either crippled or annihilated it. To preserve the business from an investigation which, according to the assessee, was unlawful the assessee was justified in taking proper steps and spending monies therefor. Such an expenditure was no doubt for earning profits but was aimed at preservation of business from the inroads of piece of legislation which, it was maintained, was unconstitutional and was so held by this Court later in certain decisions that have already been mentioned. The expenditure which was incurred by the assessee in opposing a coercive governmental action with the object of saving taxation and safeguarding business was justified by commercial expediency and was, therefore, allowable under Section 10 (2) (xv) of the Act. We have no doubt that the above approach of the High Court and its ultimate decision were fully justified on principle and authority.
### Response:
0
### Explanation:
about Rupees 4 crores. Taxes levied on that income and the penalties imposed would naturally have been very heavy for the business of the assessee and might have either crippled or annihilated it. To preserve the business from an investigation which, according to the assessee, was unlawful the assessee was justified in taking proper steps and spending monies therefor. Such an expenditure was no doubt for earning profits but was aimed at preservation of business from the inroads of piece of legislation which, it was maintained, was unconstitutional and was so held by this Court later in certain decisions that have already been mentioned. The expenditure which was incurred by the assessee in opposing a coercive governmental action with the object of saving taxation and safeguarding business was justified by commercial expediency and was, therefore, allowable under Section 10 (2) (xv) of the Act. We have no doubt that the above approach of the High Court and its ultimate decision were fully justified on principle and authority.The expression "for the purpose of the business" is essentially wider than the expression "for the purpose of earning profits." It covers not only the running of the business or its administration but also measures for the preservation of the business and protection of its assets and property. It may legitimately comprehend many other acts incidental to the carrying on of the business. In Travancore Titanium Product Ltd. V. Commr. ofKerala, 60 ITR 277 at p. 282 = (AIR 1966 SC 1250 ) the position relating to expenditure which can be deducted under S. 10 (2) (xv) of the Act was summarisednature of the expenditure or outgoing must be adjudged in the light of accepted commercial practice and trading principles. The expenditure must be incidental to the business and must be necessitated or justified by commercial expediency. It must be directly and intimately connected with the business and be laid out by the taxpayer in his character as a trader. To be a permissible deduction there must be a direct and intimate connection between the expenditure and the business, i.e. between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of theis well settled by now that the deductibility of expenditure incurred in prosecuting the civil proceedings to resist the enforcement of a measure, legislative or executive, which means restriction on the carrying on of a business or to obtain a declaration that the measure is invalid, would, if other conditions are satisfied, be admissible as a deduction under section 10 (2) (xv). Deductibility of such expenditure does not depend on the final outcome of those proceedings. However,, unduly optimistic or over confident in his conviction the assessee might appear in the light of the ultimate decision, expenditure in prosecuting a civil proceeding cannot be denied as a permissible deduction if it is reasonably and honestly incurred to promote the interest of thebusiness. (See Sree Meenakshi Mills Ltd. V. Commissioner ofMadras 63 ITR 207 = (AIR 1967 SCe unable to appreciate how these observations which were made in the light of different facts in any way militate against the view of Viscount Simon and Lord Oaksey in Smith Potato Estate case, (1948) 30 Tax Case 267 as also the decision of the Calcutta High Court in Calcutta Landing and Shipping Co. case, 77 ITR 575 = (AIR 1969 Cal 171 ). It may be pointed out that in the decision relied upon by the Revenue the question was whether the tax imposed under the Wealth Tax Act on the owner of assets was a permissible deduction under Section 10 (2) (xv) of the Act. It was emphasised by this Court that the charge of the tax was the same whether the assets were part of or used in the trading organisation of the owner or were merely owned by him. The assets of thewhether incorporated or not become chargeable to tax because they were owned by him and not because they were used by him in the business. The position is quite different when it has to be decided whether an allowance contemplated in Section 10 (2) (xv). deductible.9. The essential test which has to be applied is whether the expenses were incurred for the preservation and protection of the assessees business from any such process or proceedings which might have resulted in the reduction of its income and profits and whether the same were actually and honestly incurred. It is not possible to understand how the expenditure on the proceedings in respect of the Investigation Commission by the assessee will not fall within the above rule. Even otherwise the expenditure was incidental to the business and was necessitated or justified by commercial expediency. It must be remembered that the earning of profits and the payment of taxes are not isolated and independent activities of a business. These activities are continuous and take place from year to year during the whole period for which the business continues. If the assessee takes any steps for reducing its liability to tax which result in more funds being left for the purpose of carrying on the business there is always a possibility of higher profits. To give an illustration, if an assessee can, by an appropriate proceedings succeed in getting its tax liability for gains and profits reduced by a sum of Rs. 1,00,000/that amount will essentially become available for the purpose of business with a reasonable expectation of more profits. As was observed by Viscount Simon in Smith Potato Estate case, (1948) 30 Tax Cas 267 if the trader considers that the Revenue seeks to take too large a share and to leave him with too little the expenditure which the trader incurs in endeavouring to correct this mistake is a disbursement laid out for the purposes of his trade. If he succeeds he will have more money with which to earn profits next year.
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Suresh Kumar Koushal & Another Vs. NAZ Foundation & Others | for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country.” The Court also referred to an earlier judgment in State of Madras v. V.G. Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and to abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable”. The responsibility of Judges in that respect is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and proper measure of self-restraint.” 53. The afore-stated judgment was relied upon in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600. Learned counsel who appeared for the appellant in that case relied upon a passage from Halsbury’s Laws of England on the issue of presumption of undue influence in the case of parties engaged to be married. While refusing to rely upon the proposition laid down in Halsbury’s laws of England, this Court observed: “The family law in England has undergone a drastic change, recognized ?new social relationship between man and woman. In our country, however, even today a marriage is an arranged affair. We do not say that there are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons to choose their own spouses, but even in such cases the consent of their parents is one of the desiderata which is sought for. Whether it is obtained in any given set of circumstances is another matter. In such arranged marriages in this country the question of two persons being engaged for any appreciable time to enable each other to meet and be in a position to exercise undue influence on one another very rarely arises. Even in the case of the marriage in the instant case, an advertisement was resorted to by Bhim Sain. The person who purports to reply is Saraswati’s mother and the person who replied to her was Bhim Sain’s Personal Assistant. But the social considerations prevailing in this country and ethos even in such cases persist in determining the respective attitudes. That apart, as we said earlier, the negotiations for marriage held in Saraswati’s sister’s house have all the appearance of a business transaction. In these circumstances that portion of the statement of the law in Halsbury which refers to the presumption of the exercise of undue influence in the case of a man to a woman to whom he is engaged to be married would hardly be applicable to conditions in this country. We have had occasion to point out the danger of such statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this country without a critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country. Often statements of law applicable to foreign countries as stated in compilations and learned treatises are cited without making a critical examination of those principles in the background of the conditions that existed or exist in those countries. If we are not wakeful and circumspect, there is every likelihood of their being simply applied to cases requiring our adjudication without consideration of the background and various other conditions to which we have referred. On several occasions merely because courts in foreign countries have taken a different view than that taken by our courts or in adjudicating on any particular matter we were asked to reconsider those decisions or to consider them for the first time and to adopt them as the law of this country. No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign country, rendered on pari materia legislative provisions and which can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.” 54. In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. 55. | 1[ds]The principle was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the following(b) that there is always 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 principles;(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;(d) 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;(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatinglegislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to beNo.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. | 1 | 34,636 | 572 | ### 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:
for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country.” The Court also referred to an earlier judgment in State of Madras v. V.G. Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and to abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable”. The responsibility of Judges in that respect is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and proper measure of self-restraint.” 53. The afore-stated judgment was relied upon in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600. Learned counsel who appeared for the appellant in that case relied upon a passage from Halsbury’s Laws of England on the issue of presumption of undue influence in the case of parties engaged to be married. While refusing to rely upon the proposition laid down in Halsbury’s laws of England, this Court observed: “The family law in England has undergone a drastic change, recognized ?new social relationship between man and woman. In our country, however, even today a marriage is an arranged affair. We do not say that there are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons to choose their own spouses, but even in such cases the consent of their parents is one of the desiderata which is sought for. Whether it is obtained in any given set of circumstances is another matter. In such arranged marriages in this country the question of two persons being engaged for any appreciable time to enable each other to meet and be in a position to exercise undue influence on one another very rarely arises. Even in the case of the marriage in the instant case, an advertisement was resorted to by Bhim Sain. The person who purports to reply is Saraswati’s mother and the person who replied to her was Bhim Sain’s Personal Assistant. But the social considerations prevailing in this country and ethos even in such cases persist in determining the respective attitudes. That apart, as we said earlier, the negotiations for marriage held in Saraswati’s sister’s house have all the appearance of a business transaction. In these circumstances that portion of the statement of the law in Halsbury which refers to the presumption of the exercise of undue influence in the case of a man to a woman to whom he is engaged to be married would hardly be applicable to conditions in this country. We have had occasion to point out the danger of such statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this country without a critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country. Often statements of law applicable to foreign countries as stated in compilations and learned treatises are cited without making a critical examination of those principles in the background of the conditions that existed or exist in those countries. If we are not wakeful and circumspect, there is every likelihood of their being simply applied to cases requiring our adjudication without consideration of the background and various other conditions to which we have referred. On several occasions merely because courts in foreign countries have taken a different view than that taken by our courts or in adjudicating on any particular matter we were asked to reconsider those decisions or to consider them for the first time and to adopt them as the law of this country. No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign country, rendered on pari materia legislative provisions and which can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.” 54. In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. 55.
### Response:
1
### Explanation:
The principle was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the following(b) that there is always 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 principles;(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;(d) 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;(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatinglegislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to beNo.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
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APSRTC & ORS Vs. G. KONDAL RAO | M.R.SHAH, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 26.04.2013 passed by the Division Bench of the High Court of judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 246 of 2013 the original respondents–corporation– employer has preferred the present appeal.3. The facts leading to the present appeal in nutshell are as under :a. That the respondent was appointed as a contract conductor and was working with the appellant corporation. b. That he was subjected to departmental enquiry. c. That following the report of the Enquiry Officer, his services came to be terminated. d. That the departmental appeal also came to be rejected. e. Review petition before the Regional Manager also came to be rejected on merits. f. That thereafter straightway and without recourse to remedies available under the Industrial Disputes Act, the workman-original writ petitioner approached the High Court invoking jurisdiction of the High Court under Article 226 of the Constitution of India by filing Writ Petition No.25970 of 2012. g. That the learned Single Judge allowed the petition holding that the matter was not res-integra and was covered by the earlier judgment of the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012. Though on behalf of the corporation an effort was made to distinguish the earlier decision on the ground that in the present case a full-fledged enquiry has been held, this distinction did not find acceptance by the learned Single Judge and solely considering the decision of the learned Single Judge in Writ Petition No.2786 of 2012 and without even considering the facts of the case, dispose of the writ petition by directing the original respondents to re-engage the petitioner in service and extend the benefit of continuity of service to him from the date of termination till the date of his re-engagement except for the period during which he was absent. This was, however, without monetary benefit and was directed to count only for regularization. h. The above order of the learned Single Judge was affirmed by the Division Bench in Writ Appeal." 4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf of the appellants has submitted that the Division Bench has materially erred in affirming the order passed by the learned Single Judge and without even considering the facts of the individual case and that the Division Bench has not properly appreciated the fact that learned Single Judge has amicably and without proper application of the facts disposed of the writ petition solely relying upon the order passed by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, which was not applicable at all. It is submitted in the present case as such the original writ petitioner was dismissed from service after holding departmental enquiry and after having held the charges and the misconduct proved in a departmental enquiry. It is submitted that the main judgment and order passed by the Division Bench affirming the order passed by the learned Single Judge cannot be sustained and required to be quashed and set aside.5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 2012.6. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside, as a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service. 8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1[ds]5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 20126. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside, as a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. | 1 | 1,040 | 493 | ### 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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M.R.SHAH, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 26.04.2013 passed by the Division Bench of the High Court of judicature of Andhra Pradesh at Hyderabad in Writ Appeal No. 246 of 2013 the original respondents–corporation– employer has preferred the present appeal.3. The facts leading to the present appeal in nutshell are as under :a. That the respondent was appointed as a contract conductor and was working with the appellant corporation. b. That he was subjected to departmental enquiry. c. That following the report of the Enquiry Officer, his services came to be terminated. d. That the departmental appeal also came to be rejected. e. Review petition before the Regional Manager also came to be rejected on merits. f. That thereafter straightway and without recourse to remedies available under the Industrial Disputes Act, the workman-original writ petitioner approached the High Court invoking jurisdiction of the High Court under Article 226 of the Constitution of India by filing Writ Petition No.25970 of 2012. g. That the learned Single Judge allowed the petition holding that the matter was not res-integra and was covered by the earlier judgment of the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012. Though on behalf of the corporation an effort was made to distinguish the earlier decision on the ground that in the present case a full-fledged enquiry has been held, this distinction did not find acceptance by the learned Single Judge and solely considering the decision of the learned Single Judge in Writ Petition No.2786 of 2012 and without even considering the facts of the case, dispose of the writ petition by directing the original respondents to re-engage the petitioner in service and extend the benefit of continuity of service to him from the date of termination till the date of his re-engagement except for the period during which he was absent. This was, however, without monetary benefit and was directed to count only for regularization. h. The above order of the learned Single Judge was affirmed by the Division Bench in Writ Appeal." 4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf of the appellants has submitted that the Division Bench has materially erred in affirming the order passed by the learned Single Judge and without even considering the facts of the individual case and that the Division Bench has not properly appreciated the fact that learned Single Judge has amicably and without proper application of the facts disposed of the writ petition solely relying upon the order passed by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, which was not applicable at all. It is submitted in the present case as such the original writ petitioner was dismissed from service after holding departmental enquiry and after having held the charges and the misconduct proved in a departmental enquiry. It is submitted that the main judgment and order passed by the Division Bench affirming the order passed by the learned Single Judge cannot be sustained and required to be quashed and set aside.5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 2012.6. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside, as a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service. 8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
### Response:
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### Explanation:
5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 20126. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside, as a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.
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