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THE STATE OF UTTAR PRADESH & ORS Vs. VIJAY SHANKAR DUBEY | to how the cut off date was fixed as 01.04.2001 is unsustainable. The Report of anomaly of the Committee with regard to different Departments recommending different pay scales is based on pay structure of different Departments and merely because employees of wireless department has been given higher scale with effect from 01.01.1996 that cannot be the ground to declare the date, 01.04.2001 fixed for implementation of the amendment of pay scale of the Joint Director, Prosecution illegal. We find substance in the submission of the learned counsel for the appellants that amendment in the pay scale of Joint Director, Prosecution was recommended by the Committee of the Chief Secretary on the analogy of the CBI organisation of the Center. Thus, the benefit of upgradation of pay scale as per pay scale in CBI organisations was accepted for the first time. The representation of Prosecution Wing was accepted by the Committee of the Chief Secretary agreeing to extend the benefits of the CBI organisation of the Center. When the amendment in the pay scale is being affected, we do not find any arbitrariness in fixing uniform date, 01.04.2001. The submission of Shri Misra that amendment of the pay scale ought to relate back from 01.01.1996 which was the date fixed by the Fifth Pay Commission cannot be accepted in the facts of the present case. 17. Shri Misra has also placed reliance on the judgment of this Court in Purshottam Lal and others vs. Union of India and another, (1973) 1 SCC 651. In the above case, the petitioners were employed with the Forest Research Institute and Colleges, Dehra Dun which was a department of the Government of India, Ministry of Food and Agriculture. The Second Pay Commission submitted its report and made recommendations with regard to Scientific Staff. The revision of the pay scale of the Scientific Staff in the Forest Research Institute was with effect from 21.06.1962 whereas recommendation of Second Pay Commission was accepted by the Government with effect from July 1, 1959 with regard to similar sister Institutions. The said Scientific Staff of Forest Research Institute protested and submitted representation and thereafter filed the writ petition under Article 32 in this Court. Before this Court arguments were raised on behalf of the Government that Second Pay Commission did not deal with the case of the petitioners and they were not entitled for the benefit with effect from July 1, 1959 which submission was not accepted. In paragraphs 14,15 and 17 this Court laid down following: 14. Mr Dhebar on behalf of the Government maintains the same position and he says that the Pay Commission Report did not deal with the case of the petitioners. We are unable to accept this contention. The terms of reference are wide, and if any category of government servants was excluded material should have been placed before this Court. The Pay Commission has clearly stated that for the purposes of their enquiry they had taken all persons in the Civil Services of the Central Government or holding civil posts under that Government and paid out of the Consolidated Fund of India, to be Central Government employees. It is not denied by Mr Dhebar that the petitioners are paid out of the Consolidated Fund of India. 15. Mr Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all government employees or it has not. But if it has made a reference in respect of all government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned. 17. In the result the petition is allowed and it is directed that the revised pay- scales of the petitioners will have effect from July 1, 1959, in accordance with the recommendations of the Pay Commission. We further direct that the petitioners should be paid the amount payable to them as a consequence of the revision of the pay-scales with effect from July 1959. The petitioners will have the costs of this petition. 18. In the above case, this Court has considered a case which was also covered by the Second Pay Commission but benefits were not extended whereas benefits to the similar sister Institutions were extended. This Court, thus, allowed the writ petition and directed the benefit to writ petitioners also with effect from July 1, 1959. The above case has no bearing on the facts of the present case. The sequences and events in the present as noted above are based on different set of facts and the above judgment does not help the respondent in the present case. 19. We, thus, are of the view that the cut off date, 01.04.2001 for amendment of pay scale of the post of Joint Director, Prosecution on the basis of the recommendation of the Committee of the Chief Secretary was a conscious decision, the amendment in the pay scale was made following the analogy in the CBI organisation of the Center. When a benefit for the first time is extended to a category of employees, the State can always fix a rational cut off date and it was not obligatory for the State to extend the benefit of analogy of the CBI organisation of the Center with effect from 01.01.1996 which was the date of the recommendations of the Fifth Pay Commission. The respondent being not covered by the Government order dated 02.02.2007 was rightly informed that he was not entitled for the benefit of amendment in the pay scale he having already retired on 31.01.1997. | 1[ds]11. Between the parties there is no dispute that Fifth Pay Commission revised pay scale of Joint Director, Prosecution from Rs.3700-5000 to Rs.12000-16500. The respondent was extended the benefit of Fifth Pay Commission Report from 01.01.1996 and his pension was thus revised accordingly. The State Government accepted the recommendations of Fifth Pay Commission vide Government order dated 23.12.1997 and decided to revise the pay scale from 01.01.1996. Several objections and representations were submitted by several Departments including Officers working in the Directorate of Prosecution13. A perusal of the above enclosure indicates that pay scales of all the officers of Prosecution Department were not amended, amendments were made only for the Senior Prosecution Officer (Senior Scale)/Deputy Director Prosecution and Joint Director (Law)/Joint Director (Prosecution) with effect from 01.04.2001 as mentioned in column No.416. The High Court in the impugned judgment relying on two earlier judgments of the High Court, in Ghanshyam Singh and Anand Kumar Mishra and others, held that the case of the respondent is covered by the said judgments, hence, the writ petition is to be allowed. The High Court had not opined as to how the cut off date was fixed as 01.04.2001 is unsustainable. The Report of anomaly of the Committee with regard to different Departments recommending different pay scales is based on pay structure of different Departments and merely because employees of wireless department has been given higher scale with effect from 01.01.1996 that cannot be the ground to declare the date, 01.04.2001 fixed for implementation of the amendment of pay scale of the Joint Director, Prosecution illegal. We find substance in the submission of the learned counsel for the appellants that amendment in the pay scale of Joint Director, Prosecution was recommended by the Committee of the Chief Secretary on the analogy of the CBI organisation of the Center. Thus, the benefit of upgradation of pay scale as per pay scale in CBI organisations was accepted for the first time. The representation of Prosecution Wing was accepted by the Committee of the Chief Secretary agreeing to extend the benefits of the CBI organisation of the Center. When the amendment in the pay scale is being affected, we do not find any arbitrariness in fixing uniform date, 01.04.2001. The submission of Shri Misra that amendment of the pay scale ought to relate back from 01.01.1996 which was the date fixed by the Fifth Pay Commission cannot be accepted in the facts of the present case18. In the above case, this Court has considered a case which was also covered by the Second Pay Commission but benefits were not extended whereas benefits to the similar sister Institutions were extended. This Court, thus, allowed the writ petition and directed the benefit to writ petitioners also with effect from July 1, 1959. The above case has no bearing on the facts of the present case. The sequences and events in the present as noted above are based on different set of facts and the above judgment does not help the respondent in the present case19. We, thus, are of the view that the cut off date, 01.04.2001 for amendment of pay scale of the post of Joint Director, Prosecution on the basis of the recommendation of the Committee of the Chief Secretary was a conscious decision, the amendment in the pay scale was made following the analogy in the CBI organisation of the Center. When a benefit for the first time is extended to a category of employees, the State can always fix a rational cut off date and it was not obligatory for the State to extend the benefit of analogy of the CBI organisation of the Center with effect from 01.01.1996 which was the date of the recommendations of the Fifth Pay Commission. The respondent being not covered by the Government order dated 02.02.2007 was rightly informed that he was not entitled for the benefit of amendment in the pay scale he having already retired on 31.01.1997. | 1 | 2,997 | 717 | ### Instruction:
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to how the cut off date was fixed as 01.04.2001 is unsustainable. The Report of anomaly of the Committee with regard to different Departments recommending different pay scales is based on pay structure of different Departments and merely because employees of wireless department has been given higher scale with effect from 01.01.1996 that cannot be the ground to declare the date, 01.04.2001 fixed for implementation of the amendment of pay scale of the Joint Director, Prosecution illegal. We find substance in the submission of the learned counsel for the appellants that amendment in the pay scale of Joint Director, Prosecution was recommended by the Committee of the Chief Secretary on the analogy of the CBI organisation of the Center. Thus, the benefit of upgradation of pay scale as per pay scale in CBI organisations was accepted for the first time. The representation of Prosecution Wing was accepted by the Committee of the Chief Secretary agreeing to extend the benefits of the CBI organisation of the Center. When the amendment in the pay scale is being affected, we do not find any arbitrariness in fixing uniform date, 01.04.2001. The submission of Shri Misra that amendment of the pay scale ought to relate back from 01.01.1996 which was the date fixed by the Fifth Pay Commission cannot be accepted in the facts of the present case. 17. Shri Misra has also placed reliance on the judgment of this Court in Purshottam Lal and others vs. Union of India and another, (1973) 1 SCC 651. In the above case, the petitioners were employed with the Forest Research Institute and Colleges, Dehra Dun which was a department of the Government of India, Ministry of Food and Agriculture. The Second Pay Commission submitted its report and made recommendations with regard to Scientific Staff. The revision of the pay scale of the Scientific Staff in the Forest Research Institute was with effect from 21.06.1962 whereas recommendation of Second Pay Commission was accepted by the Government with effect from July 1, 1959 with regard to similar sister Institutions. The said Scientific Staff of Forest Research Institute protested and submitted representation and thereafter filed the writ petition under Article 32 in this Court. Before this Court arguments were raised on behalf of the Government that Second Pay Commission did not deal with the case of the petitioners and they were not entitled for the benefit with effect from July 1, 1959 which submission was not accepted. In paragraphs 14,15 and 17 this Court laid down following: 14. Mr Dhebar on behalf of the Government maintains the same position and he says that the Pay Commission Report did not deal with the case of the petitioners. We are unable to accept this contention. The terms of reference are wide, and if any category of government servants was excluded material should have been placed before this Court. The Pay Commission has clearly stated that for the purposes of their enquiry they had taken all persons in the Civil Services of the Central Government or holding civil posts under that Government and paid out of the Consolidated Fund of India, to be Central Government employees. It is not denied by Mr Dhebar that the petitioners are paid out of the Consolidated Fund of India. 15. Mr Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all government employees or it has not. But if it has made a reference in respect of all government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned. 17. In the result the petition is allowed and it is directed that the revised pay- scales of the petitioners will have effect from July 1, 1959, in accordance with the recommendations of the Pay Commission. We further direct that the petitioners should be paid the amount payable to them as a consequence of the revision of the pay-scales with effect from July 1959. The petitioners will have the costs of this petition. 18. In the above case, this Court has considered a case which was also covered by the Second Pay Commission but benefits were not extended whereas benefits to the similar sister Institutions were extended. This Court, thus, allowed the writ petition and directed the benefit to writ petitioners also with effect from July 1, 1959. The above case has no bearing on the facts of the present case. The sequences and events in the present as noted above are based on different set of facts and the above judgment does not help the respondent in the present case. 19. We, thus, are of the view that the cut off date, 01.04.2001 for amendment of pay scale of the post of Joint Director, Prosecution on the basis of the recommendation of the Committee of the Chief Secretary was a conscious decision, the amendment in the pay scale was made following the analogy in the CBI organisation of the Center. When a benefit for the first time is extended to a category of employees, the State can always fix a rational cut off date and it was not obligatory for the State to extend the benefit of analogy of the CBI organisation of the Center with effect from 01.01.1996 which was the date of the recommendations of the Fifth Pay Commission. The respondent being not covered by the Government order dated 02.02.2007 was rightly informed that he was not entitled for the benefit of amendment in the pay scale he having already retired on 31.01.1997.
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11. Between the parties there is no dispute that Fifth Pay Commission revised pay scale of Joint Director, Prosecution from Rs.3700-5000 to Rs.12000-16500. The respondent was extended the benefit of Fifth Pay Commission Report from 01.01.1996 and his pension was thus revised accordingly. The State Government accepted the recommendations of Fifth Pay Commission vide Government order dated 23.12.1997 and decided to revise the pay scale from 01.01.1996. Several objections and representations were submitted by several Departments including Officers working in the Directorate of Prosecution13. A perusal of the above enclosure indicates that pay scales of all the officers of Prosecution Department were not amended, amendments were made only for the Senior Prosecution Officer (Senior Scale)/Deputy Director Prosecution and Joint Director (Law)/Joint Director (Prosecution) with effect from 01.04.2001 as mentioned in column No.416. The High Court in the impugned judgment relying on two earlier judgments of the High Court, in Ghanshyam Singh and Anand Kumar Mishra and others, held that the case of the respondent is covered by the said judgments, hence, the writ petition is to be allowed. The High Court had not opined as to how the cut off date was fixed as 01.04.2001 is unsustainable. The Report of anomaly of the Committee with regard to different Departments recommending different pay scales is based on pay structure of different Departments and merely because employees of wireless department has been given higher scale with effect from 01.01.1996 that cannot be the ground to declare the date, 01.04.2001 fixed for implementation of the amendment of pay scale of the Joint Director, Prosecution illegal. We find substance in the submission of the learned counsel for the appellants that amendment in the pay scale of Joint Director, Prosecution was recommended by the Committee of the Chief Secretary on the analogy of the CBI organisation of the Center. Thus, the benefit of upgradation of pay scale as per pay scale in CBI organisations was accepted for the first time. The representation of Prosecution Wing was accepted by the Committee of the Chief Secretary agreeing to extend the benefits of the CBI organisation of the Center. When the amendment in the pay scale is being affected, we do not find any arbitrariness in fixing uniform date, 01.04.2001. The submission of Shri Misra that amendment of the pay scale ought to relate back from 01.01.1996 which was the date fixed by the Fifth Pay Commission cannot be accepted in the facts of the present case18. In the above case, this Court has considered a case which was also covered by the Second Pay Commission but benefits were not extended whereas benefits to the similar sister Institutions were extended. This Court, thus, allowed the writ petition and directed the benefit to writ petitioners also with effect from July 1, 1959. The above case has no bearing on the facts of the present case. The sequences and events in the present as noted above are based on different set of facts and the above judgment does not help the respondent in the present case19. We, thus, are of the view that the cut off date, 01.04.2001 for amendment of pay scale of the post of Joint Director, Prosecution on the basis of the recommendation of the Committee of the Chief Secretary was a conscious decision, the amendment in the pay scale was made following the analogy in the CBI organisation of the Center. When a benefit for the first time is extended to a category of employees, the State can always fix a rational cut off date and it was not obligatory for the State to extend the benefit of analogy of the CBI organisation of the Center with effect from 01.01.1996 which was the date of the recommendations of the Fifth Pay Commission. The respondent being not covered by the Government order dated 02.02.2007 was rightly informed that he was not entitled for the benefit of amendment in the pay scale he having already retired on 31.01.1997.
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Goodlass Nerolac Paints Limited Vs. Paints Employees' Union | of Section 18 of the Industrial Dispute Act, that settlement becomes applicable to the workers who sign the settlement and accept the terms of the settlement. The court has noted the distinction between a settlement reached because of intervention of the conciliation officer under sub-section 3 of Section 18 of the Act and a settlement reached under sub-section 1 of Section 18. The Division Bench has held that in order that the settlement under sub-section 1 of Section 18 becomes applicable the terms of the settlement have to be accepted by the workers. Paragraphs 7 & 8 of the judgment, in our opinion, are relevant. They read as under:-"Regarding the grievance that there is "unfair labour practice" by the company, the learned counsel for Respondent No.1 is right in contending that both the classes of employees cannot be said to be similarly situated. Since the case does not fall under sub-sec.(3) of S.18 of the Act, but is covered by sub-sect.(1), obviously, the benefits can be extended to those employees who had entered into settlement. Such settlement creates rights in favour of one party, and, at the same time, it creates obligations. If a person does not give an undertaking, which is a part and parcel of the voluntary settlement arrived at between the parties otherwise than in conciliation proceedings, he cannot claim benefits under the said settlement.""8. No doubt, it was contended that under Clause 6 of the settlement, the Company was required to take action, if such action not taken, it is open to the Appellant to take appropriate proceedings in accordance with law. The fact, however, remains that the settlement which was arrived at between the parties, which has been relied upon by the Tribunal as well as by the learned Single Judge, is a settlement under sub-sec.(1) of S.18 of the Act. Obviously, therefore, the employees covered by such settlement under sub-sec.(1) of S.18 is an independent class, and if certain benefits have been granted in favour of those employees, no complaint can be made by the members of the other union, and on that basis, no relief can be granted."8.Now, so far as the question whether the settlement was actually a settlement or purported settlement is concerned, in our opinion, though the learned Counsel appearing for the complainant-union submitted that it was a purported settlement, what is found in paragraph 3(j)(vi) of the complaint shows that even according to the complainant because of the 1987 settlement there was a change in method of work which has been accepted and induced and given effect to by the Appellant-employer. The 1989 settlement is a successor to 1987 settlement as per the pleadings in the above referred paragraph. What is further to be seen is after this settlement was signed it was placed on the notice board. It had clause (7), which reads as under:-"(7) That it is clearly understood that the benefits of this settlement are extended only to those workmen and staff whose names are annexed to this settlement. However, it is provided that should any other workman/ staff show his willingness to give production and efficiency as per clause No.1 and 2 of this settlement the Company shall give to him the interim productivity Allowance prospectively on the same basis and the same conditions as per stipulated in Clause No.3 of this settlement. Such workmen and staff will be made parties to this settlement."9.It is clear from Clause (7) quoted above that any worker who accepts the settlement and signs it by agreeing to give productivity and efficiency is entitled to the benefits of said settlement. In our opinion, therefore, by reading Clause (7) it is clear that this settlement was not restricted to only members of the other union. Any employee by signing the settlement would have become entitled to the benefits of the settlement. It is not the case of the complainant-union in its complaint that any of the terms of the settlement were so designed as to exclude the members of the complainant-union. It is also not the case that any clause in the settlement agreement was included malafidely to harm the interest of the workers. In our opinion, therefore, it cannot be said that the settlement was not a real settlement or that it had any clauses which were included malafidely. It is further to be seen that the learned single Judge has held that the finding recorded by the Industrial court that the employer is guilty of unfair labour practice under items 9 of Schedule IV is not correct and he has set aside that finding. In our opinion, therefore, as a consequence it was for the learned single Judge to consider whether reliefs that have been granted by the Industrial Court can be sustained in the absence of the finding that the employer is guilty of unfair labour practice under item 9 of Schedule IV of the Act.10.In our opinion, the Industrial Court on the overall view of the matter could not have issued directions for extending the benefits of the settlement to the other workers without they signing the settlement. It is further to be seen here that if the learned counsel appearing for the complainant-union is right in submitting that there was no real settlement and it was only a purported settlement, in our opinion, in view of the law laid down by the Supreme Court in the case of R.N. Gosain vs. Yashpal Dhir, referred to above, they are not entitled to claim benefits of the settlement, which according to them is not the real settlement, but only a purported settlement.11.Taking overall view of the matter, therefore, in our opinion, as the settlement had a productivity clause, admittedly workers who were members of the complainant-union had not signed the settlement, though they were made aware of the settlement, the Industrial Court was not justified in issuing the directions for enforcement of that settlement in favour of the members of the complainant-union without they signing the settlement. | 1[ds]7.Now, if in the light of these rival submissions the record of the case is perused, it becomes clear that the Industrial court has directed extending the benefits of 1989 settlement to all the workers without the workers signing the settlement. Perusal of the judgment of the Division Bench of this court in the case of Tata Consulting Engineers and Associates Staff Union vs. Tata Consulting EngineersAnr., referred to above shows that when there is a settlement signed under1 of Section 18 of the Industrial Dispute Act, that settlement becomes applicable to the workers who sign the settlement and accept the terms of the settlement. The court has noted the distinction between a settlement reached because of intervention of the conciliation officer under3 of Section 18 of the Act and a settlement reached under1 of Section 18. The Division Bench has held that in order that the settlement under1 of Section 18 becomes applicable the terms of the settlement have to be accepted by the workers. Paragraphs 78 of the judgment, in our opinion, are relevant. They read asthe grievance that there is "unfair labour practice" by the company, the learned counsel for Respondent No.1 is right in contending that both the classes of employees cannot be said to be similarly situated. Since the case does not fall underof S.18 of the Act, but is covered byobviously, the benefits can be extended to those employees who had entered into settlement. Such settlement creates rights in favour of one party, and, at the same time, it creates obligations. If a person does not give an undertaking, which is a part and parcel of the voluntary settlement arrived at between the parties otherwise than in conciliation proceedings, he cannot claim benefits under the said settlement.""8. No doubt, it was contended that under Clause 6 of the settlement, the Company was required to take action, if such action not taken, it is open to the Appellant to take appropriate proceedings in accordance with law. The fact, however, remains that the settlement which was arrived at between the parties, which has been relied upon by the Tribunal as well as by the learned Single Judge, is a settlement underof S.18 of the Act. Obviously, therefore, the employees covered by such settlement underof S.18 is an independent class, and if certain benefits have been granted in favour of those employees, no complaint can be made by the members of the other union, and on that basis, no relief can be granted."8.Now, so far as the question whether the settlement was actually a settlement or purported settlement is concerned, in our opinion, though the learned Counsel appearing for thesubmitted that it was a purported settlement, what is found in paragraph 3(j)(vi) of the complaint shows that even according to the complainant because of the 1987 settlement there was a change in method of work which has been accepted and induced and given effect to by theThe 1989 settlement is a successor to 1987 settlement as per the pleadings in the above referred paragraph. What is further to be seen is after this settlement was signed it was placed on the notice board. It had clause (7), which reads asThat it is clearly understood that the benefits of this settlement are extended only to those workmen and staff whose names are annexed to this settlement. However, it is provided that should any other workman/ staff show his willingness to give production and efficiency as per clause No.1 and 2 of this settlement the Company shall give to him the interim productivity Allowance prospectively on the same basis and the same conditions as per stipulated in Clause No.3 of this settlement. Such workmen and staff will be made parties to this settlement."9.It is clear from Clause (7) quoted above that any worker who accepts the settlement and signs it by agreeing to give productivity and efficiency is entitled to the benefits of said settlement. In our opinion, therefore, by reading Clause (7) it is clear that this settlement was not restricted to only members of the other union. Any employee by signing the settlement would have become entitled to the benefits of the settlement. It is not the case of thein its complaint that any of the terms of the settlement were so designed as to exclude the members of theIt is also not the case that any clause in the settlement agreement was included malafidely to harm the interest of the workers. In our opinion, therefore, it cannot be said that the settlement was not a real settlement or that it had any clauses which were included malafidely. It is further to be seen that the learned single Judge has held that the finding recorded by the Industrial court that the employer is guilty of unfair labour practice under items 9 of Schedule IV is not correct and he has set aside that finding. In our opinion, therefore, as a consequence it was for the learned single Judge to consider whether reliefs that have been granted by the Industrial Court can be sustained in the absence of the finding that the employer is guilty of unfair labour practice under item 9 of Schedule IV of the Act.10.In our opinion, the Industrial Court on the overall view of the matter could not have issued directions for extending the benefits of the settlement to the other workers without they signing the settlement. It is further to be seen here that if the learned counsel appearing for theis right in submitting that there was no real settlement and it was only a purported settlement, in our opinion, in view of the law laid down by the Supreme Court in the case of R.N. Gosain vs. Yashpal Dhir, referred to above, they are not entitled to claim benefits of the settlement, which according to them is not the real settlement, but only a purported settlement.11.Taking overall view of the matter, therefore, in our opinion, as the settlement had a productivity clause, admittedly workers who were members of thehad not signed the settlement, though they were made aware of the settlement, the Industrial Court was not justified in issuing the directions for enforcement of that settlement in favour of the members of thewithout they signing the settlement. | 1 | 2,424 | 1,152 | ### Instruction:
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of Section 18 of the Industrial Dispute Act, that settlement becomes applicable to the workers who sign the settlement and accept the terms of the settlement. The court has noted the distinction between a settlement reached because of intervention of the conciliation officer under sub-section 3 of Section 18 of the Act and a settlement reached under sub-section 1 of Section 18. The Division Bench has held that in order that the settlement under sub-section 1 of Section 18 becomes applicable the terms of the settlement have to be accepted by the workers. Paragraphs 7 & 8 of the judgment, in our opinion, are relevant. They read as under:-"Regarding the grievance that there is "unfair labour practice" by the company, the learned counsel for Respondent No.1 is right in contending that both the classes of employees cannot be said to be similarly situated. Since the case does not fall under sub-sec.(3) of S.18 of the Act, but is covered by sub-sect.(1), obviously, the benefits can be extended to those employees who had entered into settlement. Such settlement creates rights in favour of one party, and, at the same time, it creates obligations. If a person does not give an undertaking, which is a part and parcel of the voluntary settlement arrived at between the parties otherwise than in conciliation proceedings, he cannot claim benefits under the said settlement.""8. No doubt, it was contended that under Clause 6 of the settlement, the Company was required to take action, if such action not taken, it is open to the Appellant to take appropriate proceedings in accordance with law. The fact, however, remains that the settlement which was arrived at between the parties, which has been relied upon by the Tribunal as well as by the learned Single Judge, is a settlement under sub-sec.(1) of S.18 of the Act. Obviously, therefore, the employees covered by such settlement under sub-sec.(1) of S.18 is an independent class, and if certain benefits have been granted in favour of those employees, no complaint can be made by the members of the other union, and on that basis, no relief can be granted."8.Now, so far as the question whether the settlement was actually a settlement or purported settlement is concerned, in our opinion, though the learned Counsel appearing for the complainant-union submitted that it was a purported settlement, what is found in paragraph 3(j)(vi) of the complaint shows that even according to the complainant because of the 1987 settlement there was a change in method of work which has been accepted and induced and given effect to by the Appellant-employer. The 1989 settlement is a successor to 1987 settlement as per the pleadings in the above referred paragraph. What is further to be seen is after this settlement was signed it was placed on the notice board. It had clause (7), which reads as under:-"(7) That it is clearly understood that the benefits of this settlement are extended only to those workmen and staff whose names are annexed to this settlement. However, it is provided that should any other workman/ staff show his willingness to give production and efficiency as per clause No.1 and 2 of this settlement the Company shall give to him the interim productivity Allowance prospectively on the same basis and the same conditions as per stipulated in Clause No.3 of this settlement. Such workmen and staff will be made parties to this settlement."9.It is clear from Clause (7) quoted above that any worker who accepts the settlement and signs it by agreeing to give productivity and efficiency is entitled to the benefits of said settlement. In our opinion, therefore, by reading Clause (7) it is clear that this settlement was not restricted to only members of the other union. Any employee by signing the settlement would have become entitled to the benefits of the settlement. It is not the case of the complainant-union in its complaint that any of the terms of the settlement were so designed as to exclude the members of the complainant-union. It is also not the case that any clause in the settlement agreement was included malafidely to harm the interest of the workers. In our opinion, therefore, it cannot be said that the settlement was not a real settlement or that it had any clauses which were included malafidely. It is further to be seen that the learned single Judge has held that the finding recorded by the Industrial court that the employer is guilty of unfair labour practice under items 9 of Schedule IV is not correct and he has set aside that finding. In our opinion, therefore, as a consequence it was for the learned single Judge to consider whether reliefs that have been granted by the Industrial Court can be sustained in the absence of the finding that the employer is guilty of unfair labour practice under item 9 of Schedule IV of the Act.10.In our opinion, the Industrial Court on the overall view of the matter could not have issued directions for extending the benefits of the settlement to the other workers without they signing the settlement. It is further to be seen here that if the learned counsel appearing for the complainant-union is right in submitting that there was no real settlement and it was only a purported settlement, in our opinion, in view of the law laid down by the Supreme Court in the case of R.N. Gosain vs. Yashpal Dhir, referred to above, they are not entitled to claim benefits of the settlement, which according to them is not the real settlement, but only a purported settlement.11.Taking overall view of the matter, therefore, in our opinion, as the settlement had a productivity clause, admittedly workers who were members of the complainant-union had not signed the settlement, though they were made aware of the settlement, the Industrial Court was not justified in issuing the directions for enforcement of that settlement in favour of the members of the complainant-union without they signing the settlement.
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of the Division Bench of this court in the case of Tata Consulting Engineers and Associates Staff Union vs. Tata Consulting EngineersAnr., referred to above shows that when there is a settlement signed under1 of Section 18 of the Industrial Dispute Act, that settlement becomes applicable to the workers who sign the settlement and accept the terms of the settlement. The court has noted the distinction between a settlement reached because of intervention of the conciliation officer under3 of Section 18 of the Act and a settlement reached under1 of Section 18. The Division Bench has held that in order that the settlement under1 of Section 18 becomes applicable the terms of the settlement have to be accepted by the workers. Paragraphs 78 of the judgment, in our opinion, are relevant. They read asthe grievance that there is "unfair labour practice" by the company, the learned counsel for Respondent No.1 is right in contending that both the classes of employees cannot be said to be similarly situated. Since the case does not fall underof S.18 of the Act, but is covered byobviously, the benefits can be extended to those employees who had entered into settlement. Such settlement creates rights in favour of one party, and, at the same time, it creates obligations. If a person does not give an undertaking, which is a part and parcel of the voluntary settlement arrived at between the parties otherwise than in conciliation proceedings, he cannot claim benefits under the said settlement.""8. No doubt, it was contended that under Clause 6 of the settlement, the Company was required to take action, if such action not taken, it is open to the Appellant to take appropriate proceedings in accordance with law. The fact, however, remains that the settlement which was arrived at between the parties, which has been relied upon by the Tribunal as well as by the learned Single Judge, is a settlement underof S.18 of the Act. Obviously, therefore, the employees covered by such settlement underof S.18 is an independent class, and if certain benefits have been granted in favour of those employees, no complaint can be made by the members of the other union, and on that basis, no relief can be granted."8.Now, so far as the question whether the settlement was actually a settlement or purported settlement is concerned, in our opinion, though the learned Counsel appearing for thesubmitted that it was a purported settlement, what is found in paragraph 3(j)(vi) of the complaint shows that even according to the complainant because of the 1987 settlement there was a change in method of work which has been accepted and induced and given effect to by theThe 1989 settlement is a successor to 1987 settlement as per the pleadings in the above referred paragraph. What is further to be seen is after this settlement was signed it was placed on the notice board. It had clause (7), which reads asThat it is clearly understood that the benefits of this settlement are extended only to those workmen and staff whose names are annexed to this settlement. However, it is provided that should any other workman/ staff show his willingness to give production and efficiency as per clause No.1 and 2 of this settlement the Company shall give to him the interim productivity Allowance prospectively on the same basis and the same conditions as per stipulated in Clause No.3 of this settlement. Such workmen and staff will be made parties to this settlement."9.It is clear from Clause (7) quoted above that any worker who accepts the settlement and signs it by agreeing to give productivity and efficiency is entitled to the benefits of said settlement. In our opinion, therefore, by reading Clause (7) it is clear that this settlement was not restricted to only members of the other union. Any employee by signing the settlement would have become entitled to the benefits of the settlement. It is not the case of thein its complaint that any of the terms of the settlement were so designed as to exclude the members of theIt is also not the case that any clause in the settlement agreement was included malafidely to harm the interest of the workers. In our opinion, therefore, it cannot be said that the settlement was not a real settlement or that it had any clauses which were included malafidely. It is further to be seen that the learned single Judge has held that the finding recorded by the Industrial court that the employer is guilty of unfair labour practice under items 9 of Schedule IV is not correct and he has set aside that finding. In our opinion, therefore, as a consequence it was for the learned single Judge to consider whether reliefs that have been granted by the Industrial Court can be sustained in the absence of the finding that the employer is guilty of unfair labour practice under item 9 of Schedule IV of the Act.10.In our opinion, the Industrial Court on the overall view of the matter could not have issued directions for extending the benefits of the settlement to the other workers without they signing the settlement. It is further to be seen here that if the learned counsel appearing for theis right in submitting that there was no real settlement and it was only a purported settlement, in our opinion, in view of the law laid down by the Supreme Court in the case of R.N. Gosain vs. Yashpal Dhir, referred to above, they are not entitled to claim benefits of the settlement, which according to them is not the real settlement, but only a purported settlement.11.Taking overall view of the matter, therefore, in our opinion, as the settlement had a productivity clause, admittedly workers who were members of thehad not signed the settlement, though they were made aware of the settlement, the Industrial Court was not justified in issuing the directions for enforcement of that settlement in favour of the members of thewithout they signing the settlement.
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PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY Vs. KARAMJIT SINGH | regularization of the services of the Respondent. 3.3. It was further submitted that the Appellant – Authority conducted a disciplinary enquiry against the officials who had recommended the name of the Respondent for regularization. The Enquiry Report dated 25.01.2005 found four officials to have supplied wrong information with respect to the regularization of the Respondent, and some other daily wagers who had less than 3 years service. Since the appointment of the Respondent on regular basis was void on account of having been fraudulently obtained by collusion, the Respondent was not entitled to the protection under the provisions of the Industrial Disputes Act, 1947. 4. Mr. Mukesh Kumar Sharma, learned Counsel appearing on behalf of the Respondent, submitted that: 4.1. There was no infirmity in the Orders passed by the Single Judge and Division Bench of the High Court. 4.2. It was submitted that the present case was covered by the decision in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors., (1993) 4 SCC 727 rendered by a Constitution Bench of this Court. 5. We have carefully perused the pleadings and the written submissions made by the parties, and also considered the submissions made at the oral hearing. 5.1. In the present case, the Respondent had sought to secure regularization of his services, even though he did not fulfill the pre-requisite of a minimum of 3 years of continuous service prior to 22.01.2001 as per the revised Policy of the Government of Punjab for regularization of work-charged, daily wage, and other similar categories of employees. . The Respondent had failed to produce any evidence whatsoever to support his claim for regularization. 5.2. The Respondent had sought to have his name included in the final list recommended for regularization by colluding with certain officials of the Appellant – Authority, who had interpolated his name in the final list forwarded to the Authority. 5.3. The Appellant – Authority has filed a copy of the original list dated 12.09.2000 prepared by the Divisional Engineer, Mohali. The said list included the names of 21 employees whose names were initially recommended for regularization. A perusal of the list dated 12.09.2000 reveals that the Respondents name was initially not recommended for regularization. However, in the final list forwarded to the Appellant – Authority, the Respondents name was interpolated. 5.4. An enquiry was duly conducted to determine whether wrong information had been supplied by the concerned officials of the Authority, so that the Respondent could get the benefit of regularization. The enquiry conducted by the Appellant – Authority revealed that the officials were guilty of supplying wrong information to the authorities regarding the period of service rendered by some daily wagers, including the Respondent. The officials had failed to verify the information provided, before forwarding it to the Authority. As a consequence, punitive orders were passed against each of the officials. In these circumstances, the Respondent was disentitled from getting the benefit of a regular appointment with the Appellant – Authority, in the absence of fulfilling the pre-requisite requirement. 5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363 In Rajasthan Tourism Development Corporation & Anr. v. Intejam Ali Zafri, (2006) 6 SCC 275. it was held that if the initial appointment itself is void, then the provisions of the Industrial Disputes Act, 1947 are not applicable for terminating the services of such workman. In a similar case, this Court in Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof. 6. In the present case, the Single Judge had held that rightly or wrongly, the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division Bench affirmed the Judgment of the Single Judge. 6.1. The High Court however failed to appreciate that the decision in Managing Director, ECIL, Hyderabad (supra) is applicable to employees of Government Departments. Since the very appointment of the Respondent on regular basis was illegal, he could not be treated as an employee of the Appellant – Authority. In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., (2010) 1 SCC 345 this Court held that service rendered in pursuance of an illegal appointment or promotion. cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion. 6.2. The illegality of such an appointment goes to the root of the Respondents absorption as a regular employee. The Respondent could not be considered to be an employee, and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant – Authority. Therefore, the High Court erroneously placed reliance on the decision in Managing Director, ECIL, Hyderabad (supra), which would not be applicable to the facts of the present case. 7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the Respondent was admittedly not an employee of the Appellant – Authority, and did not hold a civil post under the State Government. The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352 ; Superintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335. He was merely a daily wager on the muster rolls of the Appellant – Authority. 8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim. | 1[ds]5.1. In the present case, the Respondent had sought to secure regularization of his services, even though he did not fulfill the pre-requisite of a minimum of 3 years of continuous service prior to 22.01.2001 as per the revised Policy of the Government of Punjab for regularization of work-charged, daily wage, and other similar categories of employees. . The Respondent had failed to produce any evidence whatsoever to support his claim for regularization5.2. The Respondent had sought to have his name included in the final list recommended for regularization by colluding with certain officials of the Appellant – Authority, who had interpolated his name in the final list forwarded to the Authority5.3. The Appellant – Authority has filed a copy of the original list dated 12.09.2000 prepared by the Divisional Engineer, Mohali. The said list included the names of 21 employees whose names were initially recommended for regularization. A perusal of the list dated 12.09.2000 reveals that the Respondents name was initially not recommended for regularization. However, in the final list forwarded to the Appellant – Authority, the Respondents name was interpolated5.4. An enquiry was duly conducted to determine whether wrong information had been supplied by the concerned officials of the Authority, so that the Respondent could get the benefit of regularization. The enquiry conducted by the Appellant – Authority revealed that the officials were guilty of supplying wrong information to the authorities regarding the period of service rendered by some daily wagers, including the Respondent. The officials had failed to verify the information provided, before forwarding it to the Authority. As a consequence, punitive orders were passed against each of the officialsIn these circumstances, the Respondent was disentitled from getting the benefit of a regular appointment with the Appellant – Authority, in the absence of fulfilling the pre-requisite requirement5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363 In Rajasthan Tourism Development Corporation & Anr. v. Intejam Ali Zafri, (2006) 6 SCC 275. it was held that if the initial appointment itself is void, then the provisions of theIndustrial Disputes Act, 1947 are not applicable for terminating the services of such workman. In a similar case, this Court in Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof6. In the present case, the Single Judge had held that rightly or wrongly, the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division Bench affirmed the Judgment of the Single Judge6.1. The High Court however failed to appreciate that the decision in Managing Director, ECIL, Hyderabad (supra) is applicable to employees of Government Departments. Since the very appointment of the Respondent on regular basis was illegal, he could not be treated as an employee of the Appellant – AuthorityIn Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., (2010) 1 SCC 345 this Court held that service rendered in pursuance of an illegal appointment or promotion. cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion6.2. The illegality of such an appointment goes to the root of the Respondents absorption as a regular employee. The Respondent could not be considered to be an employee, and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant – AuthorityTherefore, the High Court erroneously placed reliance on the decision in Managing Director, ECIL, Hyderabad (supra), which would not be applicable to the facts of the present case7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the Respondent was admittedly not an employee of the Appellant – Authority, and did not hold a civil post under the State Government. The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352 ; Superintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335. He was merely a daily wager on the muster rolls of the Appellant – Authority.8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim. | 1 | 2,809 | 881 | ### 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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regularization of the services of the Respondent. 3.3. It was further submitted that the Appellant – Authority conducted a disciplinary enquiry against the officials who had recommended the name of the Respondent for regularization. The Enquiry Report dated 25.01.2005 found four officials to have supplied wrong information with respect to the regularization of the Respondent, and some other daily wagers who had less than 3 years service. Since the appointment of the Respondent on regular basis was void on account of having been fraudulently obtained by collusion, the Respondent was not entitled to the protection under the provisions of the Industrial Disputes Act, 1947. 4. Mr. Mukesh Kumar Sharma, learned Counsel appearing on behalf of the Respondent, submitted that: 4.1. There was no infirmity in the Orders passed by the Single Judge and Division Bench of the High Court. 4.2. It was submitted that the present case was covered by the decision in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors., (1993) 4 SCC 727 rendered by a Constitution Bench of this Court. 5. We have carefully perused the pleadings and the written submissions made by the parties, and also considered the submissions made at the oral hearing. 5.1. In the present case, the Respondent had sought to secure regularization of his services, even though he did not fulfill the pre-requisite of a minimum of 3 years of continuous service prior to 22.01.2001 as per the revised Policy of the Government of Punjab for regularization of work-charged, daily wage, and other similar categories of employees. . The Respondent had failed to produce any evidence whatsoever to support his claim for regularization. 5.2. The Respondent had sought to have his name included in the final list recommended for regularization by colluding with certain officials of the Appellant – Authority, who had interpolated his name in the final list forwarded to the Authority. 5.3. The Appellant – Authority has filed a copy of the original list dated 12.09.2000 prepared by the Divisional Engineer, Mohali. The said list included the names of 21 employees whose names were initially recommended for regularization. A perusal of the list dated 12.09.2000 reveals that the Respondents name was initially not recommended for regularization. However, in the final list forwarded to the Appellant – Authority, the Respondents name was interpolated. 5.4. An enquiry was duly conducted to determine whether wrong information had been supplied by the concerned officials of the Authority, so that the Respondent could get the benefit of regularization. The enquiry conducted by the Appellant – Authority revealed that the officials were guilty of supplying wrong information to the authorities regarding the period of service rendered by some daily wagers, including the Respondent. The officials had failed to verify the information provided, before forwarding it to the Authority. As a consequence, punitive orders were passed against each of the officials. In these circumstances, the Respondent was disentitled from getting the benefit of a regular appointment with the Appellant – Authority, in the absence of fulfilling the pre-requisite requirement. 5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363 In Rajasthan Tourism Development Corporation & Anr. v. Intejam Ali Zafri, (2006) 6 SCC 275. it was held that if the initial appointment itself is void, then the provisions of the Industrial Disputes Act, 1947 are not applicable for terminating the services of such workman. In a similar case, this Court in Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof. 6. In the present case, the Single Judge had held that rightly or wrongly, the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division Bench affirmed the Judgment of the Single Judge. 6.1. The High Court however failed to appreciate that the decision in Managing Director, ECIL, Hyderabad (supra) is applicable to employees of Government Departments. Since the very appointment of the Respondent on regular basis was illegal, he could not be treated as an employee of the Appellant – Authority. In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., (2010) 1 SCC 345 this Court held that service rendered in pursuance of an illegal appointment or promotion. cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion. 6.2. The illegality of such an appointment goes to the root of the Respondents absorption as a regular employee. The Respondent could not be considered to be an employee, and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant – Authority. Therefore, the High Court erroneously placed reliance on the decision in Managing Director, ECIL, Hyderabad (supra), which would not be applicable to the facts of the present case. 7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the Respondent was admittedly not an employee of the Appellant – Authority, and did not hold a civil post under the State Government. The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352 ; Superintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335. He was merely a daily wager on the muster rolls of the Appellant – Authority. 8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim.
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5.1. In the present case, the Respondent had sought to secure regularization of his services, even though he did not fulfill the pre-requisite of a minimum of 3 years of continuous service prior to 22.01.2001 as per the revised Policy of the Government of Punjab for regularization of work-charged, daily wage, and other similar categories of employees. . The Respondent had failed to produce any evidence whatsoever to support his claim for regularization5.2. The Respondent had sought to have his name included in the final list recommended for regularization by colluding with certain officials of the Appellant – Authority, who had interpolated his name in the final list forwarded to the Authority5.3. The Appellant – Authority has filed a copy of the original list dated 12.09.2000 prepared by the Divisional Engineer, Mohali. The said list included the names of 21 employees whose names were initially recommended for regularization. A perusal of the list dated 12.09.2000 reveals that the Respondents name was initially not recommended for regularization. However, in the final list forwarded to the Appellant – Authority, the Respondents name was interpolated5.4. An enquiry was duly conducted to determine whether wrong information had been supplied by the concerned officials of the Authority, so that the Respondent could get the benefit of regularization. The enquiry conducted by the Appellant – Authority revealed that the officials were guilty of supplying wrong information to the authorities regarding the period of service rendered by some daily wagers, including the Respondent. The officials had failed to verify the information provided, before forwarding it to the Authority. As a consequence, punitive orders were passed against each of the officialsIn these circumstances, the Respondent was disentitled from getting the benefit of a regular appointment with the Appellant – Authority, in the absence of fulfilling the pre-requisite requirement5.5. It is well settled that an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363 In Rajasthan Tourism Development Corporation & Anr. v. Intejam Ali Zafri, (2006) 6 SCC 275. it was held that if the initial appointment itself is void, then the provisions of theIndustrial Disputes Act, 1947 are not applicable for terminating the services of such workman. In a similar case, this Court in Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC 690 held that since the respondent had obtained his appointment by playing fraud, he could not be allowed to get the benefits thereof6. In the present case, the Single Judge had held that rightly or wrongly, the Respondent had obtained regularization, and was therefore entitled to a disciplinary enquiry. The Division Bench affirmed the Judgment of the Single Judge6.1. The High Court however failed to appreciate that the decision in Managing Director, ECIL, Hyderabad (supra) is applicable to employees of Government Departments. Since the very appointment of the Respondent on regular basis was illegal, he could not be treated as an employee of the Appellant – AuthorityIn Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., (2010) 1 SCC 345 this Court held that service rendered in pursuance of an illegal appointment or promotion. cannot be equated to service rendered in pursuance of a valid and lawful appointment or promotion6.2. The illegality of such an appointment goes to the root of the Respondents absorption as a regular employee. The Respondent could not be considered to be an employee, and would not be entitled to any benefits under the Regulations applicable to employees of the Appellant – AuthorityTherefore, the High Court erroneously placed reliance on the decision in Managing Director, ECIL, Hyderabad (supra), which would not be applicable to the facts of the present case7. The question of holding disciplinary proceedings as envisaged under Article 311 of the Constitution, or under any other disciplinary rules did not arise in the present case since the Respondent was admittedly not an employee of the Appellant – Authority, and did not hold a civil post under the State Government. The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352 ; Superintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335. He was merely a daily wager on the muster rolls of the Appellant – Authority.8. It is abundantly clear from the facts of the case, and the material on record that the regularization of the services of the Respondent was illegal and invalid. The Respondent was provided a full opportunity to adduce evidence to establish that he had 3 years continuous service prior to 22.01.2001. However, he failed to furnish any proof whatsoever to substantiate his claim.
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Mangala Kunhimina Umma & Ors Vs. Puthivaveottil Paru Amma & Ors | not a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage.16. The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written document for enjoyment of the property by the transferee in lieu of rent or perquisites. Secondly, the term of renewal of the enjoyment would indicate the feature of a lease. Thirdly, it has to be found out whether there is any provision for payment of customary dues. The learned Single Judge in the decision of the Kerala High Court in Hussain Thangal v. Ali 1961 Ker LT 1033 rightly said that the use of words like pattam meaning profits would be a strong indication of the transaction to be a lease and not a mortgage.17. The dominant features of a mortgage transaction on the other hand would be the ascertainment of the ratio of the value of land to the amount advanced. If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage. A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that the transaction is a loan and a mortgage and not a lease. The absence of such a provision, however, would not totally repel the transaction to be a mortgage. The execution of counter-part is sometimes a common feature in the case of possessory mortgage though the existence of a counter-part by itself will not be conclusive of the question.18. The deed understood in the light of the surrounding circumstances will provide the answer in the facts and circumstances of each case. In the present case, emphasis was placed by counsel for the appellants on the payment of Government revenue by the transferee. This Court in Patel Bhuder Mavji v. Jat Mamdaji Kalaji (deceased) through L. Rs. Jat Saheb Khan Mamdaji, (1969) 3 SCR 690 = AIR 1969 SC 1196 ) said that payment of revenue and other dues to the State would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under Section 76 (c) of the Transfer of Property Act in the absence of a contract to the contrary pay out of the income of the property the Government revenue and all other charges of a public nature during their possession of such land. The High Court in the present case correctly said that stipulation in the deed of payment of Government revenue by the transferee was -"that by virtue of the grant the liability to pay revenue is transferred to the grantee and the grantee who had accepted the grant and the liability, when he pays the revenue, pays it on his own behalf".The High Court also correctly held that a mere direction to pay the revenue of the property by the grantee, particularly when no payment is stipulated to be made to the grantor or when the payment is not directed to be made out of anything which is due or payable to the grantor, cannot be construed as a payment or rent or michavaram to the grantor.19. The proportion between the amount advanced and the value of the property is one of the important tests to be taken into consideration in deciding the nature of the transaction. Where the amount advanced bears substantial proportion to the value of the property it is an important element indicating that the intention was the creation of a mortgage and not a tenancy. In the present case, the amount for which the properties included in Ex. B-6 were sold to the first plaintiff under Ex. A-2 was Rs. 5000/- out of which Rs. 2500/- was to go in discharge of the amount under Ex. B-6. The advance, therefore, bore a substantial proportion to the value of the property. This feature when considered along with the fact that the document did not provide payment of any annual purapped to the jenmi and that the annual amount which was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and not a tenancy.20. It is significant that after the execution of Ex. B-6 defendants Nos. 1 and 2 entered into a partition agreement evidenced by Ex. A-3 The partition deed included transactions called kanam other than the disputed one forming the subject-matter of the suit. In almost all the properties held under kanam there was division by metes and bounds, but with regard to Ex B-6 and the amount of Rs. 2000/- there was no division by metes and bounds. This would also point to the conclusion that the defendants Nos. 1 and 2 never treated Ex. B-6 as creating a tenancy.21. In the present case the features which favour the construction of the transaction to be a mortgage and not a lease are; first that there is no provision for renewal; secondly, there is no provision for payment of customary dues; thirdly, the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State fourthly, the payment of land tax is not a deduction from rent or perquisites; fifthly, there is a provision for surrendering the property with a registered release at the cost of the transferees on the receipt of the consideration of kanam and the balance amount; sixthly, when the consideration is paid back the counter pattam deeds and prior deeds would be returned; and finally, there is liability to pay interest on the advance and possession and enjoyment of profits of the property is in lieu of interest. | 1[ds]15. The elements which are usually considered relevant to find out the intention of the parties, are first the proportion of the amount advanced to the value of the security secondly, the rate of interest payable on the sum advanced; thirdly, the absence of a provision for making improvements and the proportion of the rent or purapad to the income reserved for appropriation towards interest and fourthly, the surrounding circumstances at the time of the transaction, namely that the tarwad was at the time of the execution of the document in dire need of money to discharge debts to indicate that the transaction was intended to be a mortgage and not a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage.16. The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written document for enjoyment of the property by the transferee in lieu of rent or perquisites. Secondly, the term of renewal of the enjoyment would indicate the feature of a lease. Thirdly, it has to be found out whether there is any provision for payment of customary dues. The learned Single Judge in the decision of the Kerala High Court in Hussain Thangal v. Ali 1961 Ker LT 1033 rightly said that the use of words like pattam meaning profits would be a strong indication of the transaction to be a lease and not a mortgage.17. The dominant features of a mortgage transaction on the other hand would be the ascertainment of the ratio of the value of land to the amount advanced. If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage. A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that the transaction is a loan and a mortgage and not a lease. The absence of such a provision, however, would not totally repel the transaction to be a mortgage. The execution of counter-part is sometimes a common feature in the case of possessory mortgage though the existence of a counter-part by itself will not be conclusive of the question.18. The deed understood in the light of the surrounding circumstances will provide the answer in the facts and circumstances of each case. In the present case, emphasis was placed by counsel for the appellants on the payment of Government revenue by the transferee. This Court in Patel Bhuder Mavji v. Jat Mamdaji Kalaji (deceased) through L. Rs. Jat Saheb Khan Mamdaji, (1969) 3 SCR 690 = AIR 1969 SC 1196 ) said that payment of revenue and other dues to the State would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under Section 76 (c) of the Transfer of Property Act in the absence of a contract to the contrary pay out of the income of the property the Government revenue and all other charges of a public nature during their possession of such land. The High Court in the present case correctly said that stipulation in the deed of payment of Government revenue by the transferee wasby virtue of the grant the liability to pay revenue is transferred to the grantee and the grantee who had accepted the grant and the liability, when he pays the revenue, pays it on his ownHigh Court also correctly held that a mere direction to pay the revenue of the property by the grantee, particularly when no payment is stipulated to be made to the grantor or when the payment is not directed to be made out of anything which is due or payable to the grantor, cannot be construed as a payment or rent or michavaram to the grantor.19. The proportion between the amount advanced and the value of the property is one of the important tests to be taken into consideration in deciding the nature of the transaction. Where the amount advanced bears substantial proportion to the value of the property it is an important element indicating that the intention was the creation of a mortgage and not a tenancy. In the present case, the amount for which the properties included in Ex. B-6 were sold to the first plaintiff under Ex. A-2 was Rs. 5000/- out of which Rs. 2500/- was to go in discharge of the amount under Ex. B-6. The advance, therefore, bore a substantial proportion to the value of the property. This feature when considered along with the fact that the document did not provide payment of any annual purapped to the jenmi and that the annual amount which was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and not a tenancy.20. It is significant that after the execution of Ex. B-6 defendants Nos. 1 and 2 entered into a partition agreement evidenced by Ex. A-3 The partition deed included transactions called kanam other than the disputed one forming the subject-matter of the suit. In almost all the properties held under kanam there was division by metes and bounds, but with regard to Ex B-6 and the amount of Rs. 2000/- there was no division by metes and bounds. This would also point to the conclusion that the defendants Nos. 1 and 2 never treated Ex. B-6 as creating a tenancy.21. In the present case the features which favour the construction of the transaction to be a mortgage and not a lease are; first that there is no provision for renewal; secondly, there is no provision for payment of customary dues; thirdly, the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State fourthly, the payment of land tax is not a deduction from rent or perquisites; fifthly, there is a provision for surrendering the property with a registered release at the cost of the transferees on the receipt of the consideration of kanam and the balance amount; sixthly, when the consideration is paid back the counter pattam deeds and prior deeds would be returned; and finally, there is liability to pay interest on the advance and possession and enjoyment of profits of the property is in lieu of interest.The mere description of the deed as kanam kuzhikanam will not be decisive of the essence of the transaction. The description of deed by itself isolated from the terms and provisions may be misleading or a misnomer.The elements which are usually considered relevant to find out the intention of the parties, are first the proportion of the amount advanced to the value of the security secondly, the rate of interest payable on the sum advanced; thirdly, the absence of a provision for making improvements and the proportion of the rent or purapad to the income reserved for appropriation towards interest and fourthly, the surrounding circumstances at the time of the transaction, namely that the tarwad was at the time of the execution of the document in dire need of money to discharge debts to indicate that the transaction was intended to be a mortgage and not a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage. | 1 | 3,408 | 1,378 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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not a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage.16. The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written document for enjoyment of the property by the transferee in lieu of rent or perquisites. Secondly, the term of renewal of the enjoyment would indicate the feature of a lease. Thirdly, it has to be found out whether there is any provision for payment of customary dues. The learned Single Judge in the decision of the Kerala High Court in Hussain Thangal v. Ali 1961 Ker LT 1033 rightly said that the use of words like pattam meaning profits would be a strong indication of the transaction to be a lease and not a mortgage.17. The dominant features of a mortgage transaction on the other hand would be the ascertainment of the ratio of the value of land to the amount advanced. If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage. A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that the transaction is a loan and a mortgage and not a lease. The absence of such a provision, however, would not totally repel the transaction to be a mortgage. The execution of counter-part is sometimes a common feature in the case of possessory mortgage though the existence of a counter-part by itself will not be conclusive of the question.18. The deed understood in the light of the surrounding circumstances will provide the answer in the facts and circumstances of each case. In the present case, emphasis was placed by counsel for the appellants on the payment of Government revenue by the transferee. This Court in Patel Bhuder Mavji v. Jat Mamdaji Kalaji (deceased) through L. Rs. Jat Saheb Khan Mamdaji, (1969) 3 SCR 690 = AIR 1969 SC 1196 ) said that payment of revenue and other dues to the State would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under Section 76 (c) of the Transfer of Property Act in the absence of a contract to the contrary pay out of the income of the property the Government revenue and all other charges of a public nature during their possession of such land. The High Court in the present case correctly said that stipulation in the deed of payment of Government revenue by the transferee was -"that by virtue of the grant the liability to pay revenue is transferred to the grantee and the grantee who had accepted the grant and the liability, when he pays the revenue, pays it on his own behalf".The High Court also correctly held that a mere direction to pay the revenue of the property by the grantee, particularly when no payment is stipulated to be made to the grantor or when the payment is not directed to be made out of anything which is due or payable to the grantor, cannot be construed as a payment or rent or michavaram to the grantor.19. The proportion between the amount advanced and the value of the property is one of the important tests to be taken into consideration in deciding the nature of the transaction. Where the amount advanced bears substantial proportion to the value of the property it is an important element indicating that the intention was the creation of a mortgage and not a tenancy. In the present case, the amount for which the properties included in Ex. B-6 were sold to the first plaintiff under Ex. A-2 was Rs. 5000/- out of which Rs. 2500/- was to go in discharge of the amount under Ex. B-6. The advance, therefore, bore a substantial proportion to the value of the property. This feature when considered along with the fact that the document did not provide payment of any annual purapped to the jenmi and that the annual amount which was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and not a tenancy.20. It is significant that after the execution of Ex. B-6 defendants Nos. 1 and 2 entered into a partition agreement evidenced by Ex. A-3 The partition deed included transactions called kanam other than the disputed one forming the subject-matter of the suit. In almost all the properties held under kanam there was division by metes and bounds, but with regard to Ex B-6 and the amount of Rs. 2000/- there was no division by metes and bounds. This would also point to the conclusion that the defendants Nos. 1 and 2 never treated Ex. B-6 as creating a tenancy.21. In the present case the features which favour the construction of the transaction to be a mortgage and not a lease are; first that there is no provision for renewal; secondly, there is no provision for payment of customary dues; thirdly, the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State fourthly, the payment of land tax is not a deduction from rent or perquisites; fifthly, there is a provision for surrendering the property with a registered release at the cost of the transferees on the receipt of the consideration of kanam and the balance amount; sixthly, when the consideration is paid back the counter pattam deeds and prior deeds would be returned; and finally, there is liability to pay interest on the advance and possession and enjoyment of profits of the property is in lieu of interest.
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If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage. A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that the transaction is a loan and a mortgage and not a lease. The absence of such a provision, however, would not totally repel the transaction to be a mortgage. The execution of counter-part is sometimes a common feature in the case of possessory mortgage though the existence of a counter-part by itself will not be conclusive of the question.18. The deed understood in the light of the surrounding circumstances will provide the answer in the facts and circumstances of each case. In the present case, emphasis was placed by counsel for the appellants on the payment of Government revenue by the transferee. This Court in Patel Bhuder Mavji v. Jat Mamdaji Kalaji (deceased) through L. Rs. Jat Saheb Khan Mamdaji, (1969) 3 SCR 690 = AIR 1969 SC 1196 ) said that payment of revenue and other dues to the State would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under Section 76 (c) of the Transfer of Property Act in the absence of a contract to the contrary pay out of the income of the property the Government revenue and all other charges of a public nature during their possession of such land. The High Court in the present case correctly said that stipulation in the deed of payment of Government revenue by the transferee wasby virtue of the grant the liability to pay revenue is transferred to the grantee and the grantee who had accepted the grant and the liability, when he pays the revenue, pays it on his ownHigh Court also correctly held that a mere direction to pay the revenue of the property by the grantee, particularly when no payment is stipulated to be made to the grantor or when the payment is not directed to be made out of anything which is due or payable to the grantor, cannot be construed as a payment or rent or michavaram to the grantor.19. The proportion between the amount advanced and the value of the property is one of the important tests to be taken into consideration in deciding the nature of the transaction. Where the amount advanced bears substantial proportion to the value of the property it is an important element indicating that the intention was the creation of a mortgage and not a tenancy. In the present case, the amount for which the properties included in Ex. B-6 were sold to the first plaintiff under Ex. A-2 was Rs. 5000/- out of which Rs. 2500/- was to go in discharge of the amount under Ex. B-6. The advance, therefore, bore a substantial proportion to the value of the property. This feature when considered along with the fact that the document did not provide payment of any annual purapped to the jenmi and that the annual amount which was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and not a tenancy.20. It is significant that after the execution of Ex. B-6 defendants Nos. 1 and 2 entered into a partition agreement evidenced by Ex. A-3 The partition deed included transactions called kanam other than the disputed one forming the subject-matter of the suit. In almost all the properties held under kanam there was division by metes and bounds, but with regard to Ex B-6 and the amount of Rs. 2000/- there was no division by metes and bounds. This would also point to the conclusion that the defendants Nos. 1 and 2 never treated Ex. B-6 as creating a tenancy.21. In the present case the features which favour the construction of the transaction to be a mortgage and not a lease are; first that there is no provision for renewal; secondly, there is no provision for payment of customary dues; thirdly, the property was to be enjoyed by the defendants by way of interest on their advance after payment of land tax to the State fourthly, the payment of land tax is not a deduction from rent or perquisites; fifthly, there is a provision for surrendering the property with a registered release at the cost of the transferees on the receipt of the consideration of kanam and the balance amount; sixthly, when the consideration is paid back the counter pattam deeds and prior deeds would be returned; and finally, there is liability to pay interest on the advance and possession and enjoyment of profits of the property is in lieu of interest.The mere description of the deed as kanam kuzhikanam will not be decisive of the essence of the transaction. The description of deed by itself isolated from the terms and provisions may be misleading or a misnomer.The elements which are usually considered relevant to find out the intention of the parties, are first the proportion of the amount advanced to the value of the security secondly, the rate of interest payable on the sum advanced; thirdly, the absence of a provision for making improvements and the proportion of the rent or purapad to the income reserved for appropriation towards interest and fourthly, the surrounding circumstances at the time of the transaction, namely that the tarwad was at the time of the execution of the document in dire need of money to discharge debts to indicate that the transaction was intended to be a mortgage and not a lease. It will always be a significant feature in a document as to whether the jenmom right of the tarwad in the properties has been secured for the kanartham by way of mortgage.
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Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another | 1. This appeal neither calls for an elaborate judgment nor a detailed discussion of the point involved in the appeal. We do not proposes to give exhaustive reasons in support of our decision for in our opinion decisions on the subject are legion and we consider it unnecessary to refer to them in details.2. Appellant-plaintiff held Title Suit 122 of 1978 in the Court of Third Munsif at Patna for a declaration that he is entitled to withdraw a certain amount deposited by the second defendant in the court. Two respondents were impleaded as defendants in the plaint. Appellant-plaintiff had described himself as the son of uterine brother of Rama Shanker Prasad. Subsequently plaintiff moved an application for amendment of the plaint inter alia seeking deletion of the word Uterine from the plaint. The trial court granted the application for amendment. First respondent preferred C.R. 921 of 1980 in the High Court of Judicature at Patna. The learned Judge of the High Court after setting out the history of litigation allowed the revision application of the first respondent observing as under :I however feel satisfied at least to this extent that in view of the legal position, this word Uterine has got a significance and may work in favour of either side to a very great extent. In this context therefore as it would amount to change in the basis of the claim I am of the view that the amendment should not have been allowed.This is the only reason which appealed to the learned Single Judge for interfering with an order granting amendment in exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure. The original plaintiff has preferred this appeal by special leave.3. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 ), wherein this Court after a review of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned counsel for the respondents contend that by the device of amendment a very important admission is being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial court. The learned counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in excise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction.4. Viewed from this angle, we find no justification for the High Court interfering with the order made by the learned trial court granting the application for amendment to the plaint. | 1[ds]3. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisionaladmission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial court. The learned counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in excise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction.4. Viewed from this angle, we find no justification for the High Court interfering with the order made by the learned trial court granting the application for amendment to the plaint. | 1 | 674 | 285 | ### 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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1. This appeal neither calls for an elaborate judgment nor a detailed discussion of the point involved in the appeal. We do not proposes to give exhaustive reasons in support of our decision for in our opinion decisions on the subject are legion and we consider it unnecessary to refer to them in details.2. Appellant-plaintiff held Title Suit 122 of 1978 in the Court of Third Munsif at Patna for a declaration that he is entitled to withdraw a certain amount deposited by the second defendant in the court. Two respondents were impleaded as defendants in the plaint. Appellant-plaintiff had described himself as the son of uterine brother of Rama Shanker Prasad. Subsequently plaintiff moved an application for amendment of the plaint inter alia seeking deletion of the word Uterine from the plaint. The trial court granted the application for amendment. First respondent preferred C.R. 921 of 1980 in the High Court of Judicature at Patna. The learned Judge of the High Court after setting out the history of litigation allowed the revision application of the first respondent observing as under :I however feel satisfied at least to this extent that in view of the legal position, this word Uterine has got a significance and may work in favour of either side to a very great extent. In this context therefore as it would amount to change in the basis of the claim I am of the view that the amendment should not have been allowed.This is the only reason which appealed to the learned Single Judge for interfering with an order granting amendment in exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure. The original plaintiff has preferred this appeal by special leave.3. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this connection, refer to Ganesh Trading Co. v. Moji Ram ((1978) 2 SCR 614 : (1978) 2 SCC 91 ), wherein this Court after a review of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned counsel for the respondents contend that by the device of amendment a very important admission is being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial court. The learned counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in excise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction.4. Viewed from this angle, we find no justification for the High Court interfering with the order made by the learned trial court granting the application for amendment to the plaint.
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3. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would not provide any justification for rejecting the amendment in exercise of its revisionaladmission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought not to have interfered with the order made by the trial court. The learned counsel for the respondents in this connection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment. The decision does not lay down any particular principle of law and appears to be a decision on its own facts. And ordinarily, it is well settled that unless there is an error in excise of jurisdiction by the trial court, the High Court would not interfere with the order in exercise of its revisional jurisdiction.4. Viewed from this angle, we find no justification for the High Court interfering with the order made by the learned trial court granting the application for amendment to the plaint.
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S. Pl. Narayanan Chettiar Vs. M. Ar. Annamalai Chettiar | and which are not executable and which have become final before the commencement of the Act, need not be reopened. A reading of the two clauses together would suggest that cl. (iii) would apply exclusively to executable decrees or orders which, though they have become final before the commencement of the Act, are still in the stage of unfinished execution and at the stage at which satisfaction was not fully received. The view which we take, in our opinion, reconciles both the clauses and does not make any of the clauses unnecessary."We concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date.We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before 25th January 1949. That is a question which does not fall for decision in the present case and we express no opinion thereon. In Kanakammal v. Muhammad Kathija Beevi, A I R 1953 Mad 188 at p. 189, it was observed :"The mere fact that the judgment-debtor raised an objection to the executability of the whole decree on the ground that it has to be scaled down is no ground for scaling down the decree and the Court will not be justified in so scaling down without a separate application. This is also another ground for holding that the judgment-debtor is not barred from filing the application to scale down the decree even though he had not raised the question at an earlier stage of the execution proceedings. We are therefore definitely of opinion that an application under S. 19 of the Act is not one which comes under S. 47, Civil Procedure Code, and therefore the principle of res judicata in execution cannot apply to the facts of the present case."The decision in A I R 1953 Mad 421 (supra) related to a different point altogether, namely, successive applications under S.19 or S. 20 of the Act. In that case the question was whether the judgment-debtor not having filed an application under S. 19 within the prescribed time from the date of the stay order under S. 20 passed on his prior application was precluded from again filing another application under S. 20 followed by an application under S. 19. It was held that he was not so entitled.In Jagannatham Chetty v. Parthasarathy Iyengar, A I R 1953 Mad 777 the question as to the meaning of the word proceedings in S. 16 was considered and it was observed that the word proceeding in S. l6 must relate to proceedings instituted for repayment of a debt and not to execution proceedings which are for enforcement of a decree or order. We greatly doubt whether that is the correct view to take, particularly when the expression debt includes a decretal debt; but as the question does not arise in present case we refrain from making any final pronouncement.In Hemavathi v. Padmavathi, I L R (1954) Mad 891, it was held that the amending Act was retrospective so as even to apply to a debt which had already been scale down once by the application of the Act and even where the rights of the parties had been finally adjudicated by decree or order of a Court, provided that the decree or order had not been executed or fully satisfied. That was held to be the effect of cl. (iii) of S. 16 of the Amending Act. In Lingappa Chettiar v. Chinnaswami Naidu, 1955-1 Mad L J 1 at p. 5 the view taken by Subba Rao and Somasundaram JJ. (the same Judges who decided the present case) in an earlier decision that a party who had an opportunity of getting the beneficent provisions of the Act applied to him before the amendment, but did not avail himself of the same, is disentitled to invoke the provisions of sub-s. (2) of S. 19 was dissented from and Govinda Menon, J., who gave the judgment of the Court, said :"We do not find any difficulty in holding that sub-s. (2) of section 19 is applicable to cases like the present, and the retrospective nature of that subsection as contemplated by cl. (iii) of S. 16 of Act XXIII of 1948 cannot be restricted or circumscribed by any other clause in that section."In 1955-l Mad L J 215 (supra) Krishnaswami Nayudu. J, said that the object of S. 16 of the amending Act was to render the application of the amendments to a wide range of suits, both to suits instituted before and after the commencement of the amending Act and to such suits in which the decrees have not only become final but have not been executed or satisfied and so long as something remains to be done out of the decree, the Act could be made applicable.It seems to us that both on authority and principle, the correct view is that the appellant was entitled to the benefit of S. 19 (2) of the Act, read with S. 16 cl. (ii) of the amending Act.12. These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accordance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision. | 0[ds]Unfortunately, the language of S.16 is not very clear and lends itself to difficulties of interpretation.We agree with the High Court that S. 16 of the amending Act in the amendments made by that Act in the sense that those amendments apply to the suits and proceedings described in the three clauses of S.Sub-section (2) of S. 19 was one of the amendments which was inserted by the amending Act and therefore the appellant-debtor must establish that he is entitled to relief under sub-s. (2) of S. 19 because his case comes under one of three clauses of S.The High Court held that cl. (ii) of S. 16 applied in the present case but the appellant-debtor could and should have raised the plea for relief under thethe appeal was pending in the High Court and as he did not do so, he was barred from claiming relief under S.19 (2) on the principle of res judicata. We do not think that this view is correct and our reasons are the following.7. The three clauses of S. 16 are independent of each other and(1) refers to suits and proceedings instituted after the commencement of the amending Act, the relevant date being January25.Clause (i) has no application in the present case and need not be further considered.Clause (iii), it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had not been executed or satisfied in full before January 25, 1949: this means that though a final decree or order for repayment of the debt had been passed before January 25, 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has not been executed or satisfied in full before the aforesaid date. It should be remembered in this connection that the word debt in the Act has a very comprehensive connotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue Court or otherwise. etc. It is, therefore, clear that the word debt includes a decretal debt. On the view that cl. (iii) applies in those cases only where a final decree or order for repayment of the debt had been made before January 25, 1949, it has no application in the present case; because the decree for repayment of the debt was passed on March 9, 195l., which was after January 25, 1949.8. We then go to cl. (ii ), This clause is in two parts and talks of two different situations; one is when no decree or order has been passed and the other is when the decree or order passed has not become final. There is, however, a common element, and the common element is that cl. (ii) refers to suits and proceedings instituted before January 25,do not think it necessary to consider the alternative argument of learned counsel for the appellant;because we are of the view that having regard to the other provisions of the Act, the words "decree or order" occurring in cl.(ii) must mean decree or order for repayment of a debt. What then is the position before us ? As we see it, the position is this. Here is a suit which was instituted before the commencement of the amending Act, namely, JanuaryThe suit was pending on that date and no decree or order for repayment of the debt had been made by that date. The decree for repayment of the debt was made some two years after, on March 9, 1951 Therefore, the two conditions laid down for the first part of cl. (ii) are present and it clearly applies to the present case. The High Court recognised this, but thought that the appellant-debtor could ask for relief at only one stage, namely, when the appeal was pending and before a decree had been passed and if the appellant-debtor did not do so, he was barred from claiming any relief on the principle of res judicata. It is here, we think with great respect, that the High Court has gone wrong. The relief under S. 19 (2) in, terms, is a relief which can be claimed after a decree for repayment of the debt has been passed. It says that the provisions of sub- s.(1) shall apply to cases where, after the commencement of the Act, a court has passed a decree for the repayment of a debt payable at such commencement. The commencement of the Act referred to in S. 19 (2) is the commencement of the main Act, (Mad. IV of 1938). It is not disputed that the debt in the present case was payable at such commencement and the court had passed a decree for repayment of that debt after such commencement. Section 19 (2) in terms applied, and by reason of the provisions of(1) of S.19 which were also attracted to the present case, the appellant-debtor was entitled to the relief asked for notwithstanding anything contained in the Code of Civil Procedure, 1908. It is true that the doctrine of res judicata is a doctrine of wide import- and S. 11 of the Code of Civil Procedure is not exhaustive of it. There is high authority for the view that the principle of res judicata may apply apart from the limited provision of the Code of Civil Procedure, but the question before us, as we see it, is no so much the application of the principle of res judicata, as the proper construction of S. 19 of the Act and cl. (ii) of S. 16 of the amending Act. In our opinion, S. 19 in express terms entitles the appellant-debtor to claim a relief under the provisions of the Act when court has passed a decree, after the commencement of the Act, for the repayment of a debt payable at such commencement.are of the view that cl. (ii) of S. 16 describes the nature of suits or proceeding in which the amendments shall apply and the pendency of a suit or proceeding on a particular date after January 25, 1949 is not the true test. The true test is whether the suit or proceeding was instituted before January 25, 1949 and whether in that suit or proceeding no decree or order for repayment of a debt had been passed before that date. That test having been fulfilled in the present case, cl. (ii) of S. 16 of the amending Act did not stand in the way of the appellant when he asked for relief under S. 19 (2) of the Act.concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date.We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before 25th JanuaryThat is a question which does not fall for decision in the present case and we express no opinion thereon.These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accordance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision. | 0 | 6,030 | 1,484 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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and which are not executable and which have become final before the commencement of the Act, need not be reopened. A reading of the two clauses together would suggest that cl. (iii) would apply exclusively to executable decrees or orders which, though they have become final before the commencement of the Act, are still in the stage of unfinished execution and at the stage at which satisfaction was not fully received. The view which we take, in our opinion, reconciles both the clauses and does not make any of the clauses unnecessary."We concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date.We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before 25th January 1949. That is a question which does not fall for decision in the present case and we express no opinion thereon. In Kanakammal v. Muhammad Kathija Beevi, A I R 1953 Mad 188 at p. 189, it was observed :"The mere fact that the judgment-debtor raised an objection to the executability of the whole decree on the ground that it has to be scaled down is no ground for scaling down the decree and the Court will not be justified in so scaling down without a separate application. This is also another ground for holding that the judgment-debtor is not barred from filing the application to scale down the decree even though he had not raised the question at an earlier stage of the execution proceedings. We are therefore definitely of opinion that an application under S. 19 of the Act is not one which comes under S. 47, Civil Procedure Code, and therefore the principle of res judicata in execution cannot apply to the facts of the present case."The decision in A I R 1953 Mad 421 (supra) related to a different point altogether, namely, successive applications under S.19 or S. 20 of the Act. In that case the question was whether the judgment-debtor not having filed an application under S. 19 within the prescribed time from the date of the stay order under S. 20 passed on his prior application was precluded from again filing another application under S. 20 followed by an application under S. 19. It was held that he was not so entitled.In Jagannatham Chetty v. Parthasarathy Iyengar, A I R 1953 Mad 777 the question as to the meaning of the word proceedings in S. 16 was considered and it was observed that the word proceeding in S. l6 must relate to proceedings instituted for repayment of a debt and not to execution proceedings which are for enforcement of a decree or order. We greatly doubt whether that is the correct view to take, particularly when the expression debt includes a decretal debt; but as the question does not arise in present case we refrain from making any final pronouncement.In Hemavathi v. Padmavathi, I L R (1954) Mad 891, it was held that the amending Act was retrospective so as even to apply to a debt which had already been scale down once by the application of the Act and even where the rights of the parties had been finally adjudicated by decree or order of a Court, provided that the decree or order had not been executed or fully satisfied. That was held to be the effect of cl. (iii) of S. 16 of the Amending Act. In Lingappa Chettiar v. Chinnaswami Naidu, 1955-1 Mad L J 1 at p. 5 the view taken by Subba Rao and Somasundaram JJ. (the same Judges who decided the present case) in an earlier decision that a party who had an opportunity of getting the beneficent provisions of the Act applied to him before the amendment, but did not avail himself of the same, is disentitled to invoke the provisions of sub-s. (2) of S. 19 was dissented from and Govinda Menon, J., who gave the judgment of the Court, said :"We do not find any difficulty in holding that sub-s. (2) of section 19 is applicable to cases like the present, and the retrospective nature of that subsection as contemplated by cl. (iii) of S. 16 of Act XXIII of 1948 cannot be restricted or circumscribed by any other clause in that section."In 1955-l Mad L J 215 (supra) Krishnaswami Nayudu. J, said that the object of S. 16 of the amending Act was to render the application of the amendments to a wide range of suits, both to suits instituted before and after the commencement of the amending Act and to such suits in which the decrees have not only become final but have not been executed or satisfied and so long as something remains to be done out of the decree, the Act could be made applicable.It seems to us that both on authority and principle, the correct view is that the appellant was entitled to the benefit of S. 19 (2) of the Act, read with S. 16 cl. (ii) of the amending Act.12. These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accordance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision.
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liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue Court or otherwise. etc. It is, therefore, clear that the word debt includes a decretal debt. On the view that cl. (iii) applies in those cases only where a final decree or order for repayment of the debt had been made before January 25, 1949, it has no application in the present case; because the decree for repayment of the debt was passed on March 9, 195l., which was after January 25, 1949.8. We then go to cl. (ii ), This clause is in two parts and talks of two different situations; one is when no decree or order has been passed and the other is when the decree or order passed has not become final. There is, however, a common element, and the common element is that cl. (ii) refers to suits and proceedings instituted before January 25,do not think it necessary to consider the alternative argument of learned counsel for the appellant;because we are of the view that having regard to the other provisions of the Act, the words "decree or order" occurring in cl.(ii) must mean decree or order for repayment of a debt. What then is the position before us ? As we see it, the position is this. Here is a suit which was instituted before the commencement of the amending Act, namely, JanuaryThe suit was pending on that date and no decree or order for repayment of the debt had been made by that date. The decree for repayment of the debt was made some two years after, on March 9, 1951 Therefore, the two conditions laid down for the first part of cl. (ii) are present and it clearly applies to the present case. The High Court recognised this, but thought that the appellant-debtor could ask for relief at only one stage, namely, when the appeal was pending and before a decree had been passed and if the appellant-debtor did not do so, he was barred from claiming any relief on the principle of res judicata. It is here, we think with great respect, that the High Court has gone wrong. The relief under S. 19 (2) in, terms, is a relief which can be claimed after a decree for repayment of the debt has been passed. It says that the provisions of sub- s.(1) shall apply to cases where, after the commencement of the Act, a court has passed a decree for the repayment of a debt payable at such commencement. The commencement of the Act referred to in S. 19 (2) is the commencement of the main Act, (Mad. IV of 1938). It is not disputed that the debt in the present case was payable at such commencement and the court had passed a decree for repayment of that debt after such commencement. Section 19 (2) in terms applied, and by reason of the provisions of(1) of S.19 which were also attracted to the present case, the appellant-debtor was entitled to the relief asked for notwithstanding anything contained in the Code of Civil Procedure, 1908. It is true that the doctrine of res judicata is a doctrine of wide import- and S. 11 of the Code of Civil Procedure is not exhaustive of it. There is high authority for the view that the principle of res judicata may apply apart from the limited provision of the Code of Civil Procedure, but the question before us, as we see it, is no so much the application of the principle of res judicata, as the proper construction of S. 19 of the Act and cl. (ii) of S. 16 of the amending Act. In our opinion, S. 19 in express terms entitles the appellant-debtor to claim a relief under the provisions of the Act when court has passed a decree, after the commencement of the Act, for the repayment of a debt payable at such commencement.are of the view that cl. (ii) of S. 16 describes the nature of suits or proceeding in which the amendments shall apply and the pendency of a suit or proceeding on a particular date after January 25, 1949 is not the true test. The true test is whether the suit or proceeding was instituted before January 25, 1949 and whether in that suit or proceeding no decree or order for repayment of a debt had been passed before that date. That test having been fulfilled in the present case, cl. (ii) of S. 16 of the amending Act did not stand in the way of the appellant when he asked for relief under S. 19 (2) of the Act.concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date.We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before 25th JanuaryThat is a question which does not fall for decision in the present case and we express no opinion thereon.These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accordance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision.
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M/S. Damodar Valley Corporation Vs. The State Of Bihar | "residual life" was not less than the standard life fixed by the parties. It is clear from the terms and conditions quoted above that there was no right in the contractors to return any of the machinery and equipments at any time they liked, or found it convenient to do so. The conditions which apply to all equipments, whether in Group A or in Group B, are also relevant to determine the nature of the transaction. The contractors are required to "continuously maintain proper machine cards showing certain relevant particulars". It is their duty to maintain the equipments in good running condition and to regularly and effectively service them. No item of machinery and equipment could be removed by the contractors under any circumstances until the full cost thereof had been recovered from them and even then only if the removal of those items of machinery or equipment was not likely to impede the satisfactory progress of the work. Then follows the most important condition that the Contractors themselves shall have to replenish their stock of spare parts of the machinery made available to them by the Corporation. When spare parts are supplied to the contractors by the Corporation, they shall be liable for the actual price of those parts inclusive of freight, insurance and customs duty. 8. Those substantially are the terms of the contract between the parties and the sole question for determination in this appeal is whether, in respect of the machinery and equipments admittedly supplied by the Corporation to the Contractors, it was a mere contract of hiring, as contended on behalf of the appellant Corporation, or a sale or a hire purchase, as contended on behalf of the respondent State. The law on the subject is not in doubt, but the difficulty arises in applying that law to the facts and circumstances of a particular case on a proper construction of the document evidencing the transaction between the parties. It is well settled that a mere contract of hiring, without more, is a species of the contract of bailment which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories, and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question, which does not arise here may arise as to what exactly were the rights and obligations of the parties to the original contract. It is equally well settled that for the purpose of determining as to which category a particular contract comes under, the Court will look at the substance of the agreement and not at the mere words describing the category. One of the tests to determine the question whether a particular agreement is a contract of mere hiring or whether it is a contract of purchase on a system of deferred payments of the purchase price is whether there is any binding obligation on the hirer to purchase the goods. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale, vide Helby v. Matthews, 1895 AC 471. Applying these two tests to the transaction in the present case, it becomes clear that it was a case of sale of goods with a condition of re-purchase on certain conditions depending upon the satisfaction of the Corporation as to whether the "residual life" of the machinery or the equipment was not less than one-third of the standard life in accordance with the terms agreed between the parties. It is clear on those terms that there is no right reserved to the contractors to return the goods at any time that they found it convenient or necessary. On the other hand, they were bound to pay two-thirds of the total approximate price fixed by the parties in equal instalments. The Contractors were not bound under the terms to return any of the machinery or the equipments nor was the Corporation bound to take them back unconditionally. The term in the agreement regarding the "taking over" of the machinery or equipments by the Corporation on payment of the "residual value" is wholly inconsistent with a contract of mere hiring and is more consistent with the property in the goods having passed to the Contractors, subject to the payment of all the instalments of the purchase price. Furthermore, the stipulation that the Contractors themselves will have to supply the spare parts, as and when needed, for replacements of the worn out parts is also consistent with the case of the respondent that title had passed to the contractors and that they were responsible for the upkeep of the machinery and equipments and for depreciation. If it were a mere contract of hiring, the owner of the goods would have continued to be liable for replacements of worn out parts and for depreciation. Applying those tests to the terms of the agreement between the parties, it is clear that the transaction was a sale on deferred payments with an option to re-purchase and not a mere contract of hiring, as contended on behalf of the appellant. | 1[ds]In our opinion, these additional grounds are not open. They were never raised at any stage of the proceedings before the authorities below, or in the High Court. This Court is sitting in appeal over the decision of the High Court under S. 25 of the Act. The High Court in coming to its conclusion was acting only in an advisory capacity. It is well settled that the High Court acting in its advisory capacity under the taxing statute cannot go beyond the questions referred to it, or on a reference called by it. The scope of the appeal to this Court, even by special leave, cannot be extended beyond the scope of the controversy that could have been legally raised before the High Court. It is manifest that the High Court could not have expressed its opinion on any matter other than the question actually before it as a result of the reference made by the Board of Revenue. The preliminary objection must, therefore, be allowed and the appeal limited to the questionwhether the transaction in question in this case amounted to a sale within the meaning of the Act8. Those substantially are the terms of the contract between the parties and the sole question for determination in this appeal iswhether, in respect of the machinery and equipments admittedly supplied by the Corporation to the Contractors, it was a mere contract of hiring, as contended on behalf of the appellant Corporation, or a sale or a hire purchase, as contended on behalf of the respondent State.The law on the subject is not in doubt, but the difficulty arises in applying that law to the facts and circumstances of a particular case on a proper construction of the document evidencing the transaction between the parties. It is well settled that a mere contract of hiring, without more, is a species of the contract of bailment which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories, and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question, which does not arise here may arise as to what exactly were the rights and obligations of the parties to the original contract. It is equally well settled that for the purpose of determining as to which category a particular contract comes under, the Court will look at the substance of the agreement and not at the mere words describing the category. One of the tests to determine the question whether a particular agreement is a contract of mere hiring or whether it is a contract of purchase on a system of deferred payments of the purchase price is whether there is any binding obligation on the hirer to purchase the goods. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale,Applying these two tests to the transaction in the present case, it becomes clear that it was a case of sale of goods with a condition of re-purchase on certain conditions depending upon the satisfaction of the Corporation as to whether the "residual life" of the machinery or the equipment was not less than one-third of the standard life in accordance with the terms agreed between the parties. It is clear on those terms that there is no right reserved to the contractors to return the goods at any time that they found it convenient or necessary. On the other hand, they were bound to pay two-thirds of the total approximate price fixed by the parties in equal instalments. The Contractors were not bound under the terms to return any of the machinery or the equipments nor was the Corporation bound to take them back unconditionally. The term in the agreement regarding the "taking over" of the machinery or equipments by the Corporation on payment of the "residual value" is wholly inconsistent with a contract of mere hiring and is more consistent with the property in the goods having passed to the Contractors, subject to the payment of all the instalments of the purchase price. Furthermore, the stipulation that the Contractors themselves will have to supply the spare parts, as and when needed, for replacements of the worn out parts is also consistent with the case of the respondent that title had passed to the contractors and that they were responsible for the upkeep of the machinery and equipments and for depreciation. If it were a mere contract of hiring, the owner of the goods would have continued to be liable for replacements of worn out parts and for depreciation. Applying those tests to the terms of the agreement between the parties, it is clear that the transaction was a sale on deferred payments with an option to re-purchase and not a mere contract of hiring, as contended on behalf of the appellant. | 1 | 5,190 | 1,035 | ### 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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"residual life" was not less than the standard life fixed by the parties. It is clear from the terms and conditions quoted above that there was no right in the contractors to return any of the machinery and equipments at any time they liked, or found it convenient to do so. The conditions which apply to all equipments, whether in Group A or in Group B, are also relevant to determine the nature of the transaction. The contractors are required to "continuously maintain proper machine cards showing certain relevant particulars". It is their duty to maintain the equipments in good running condition and to regularly and effectively service them. No item of machinery and equipment could be removed by the contractors under any circumstances until the full cost thereof had been recovered from them and even then only if the removal of those items of machinery or equipment was not likely to impede the satisfactory progress of the work. Then follows the most important condition that the Contractors themselves shall have to replenish their stock of spare parts of the machinery made available to them by the Corporation. When spare parts are supplied to the contractors by the Corporation, they shall be liable for the actual price of those parts inclusive of freight, insurance and customs duty. 8. Those substantially are the terms of the contract between the parties and the sole question for determination in this appeal is whether, in respect of the machinery and equipments admittedly supplied by the Corporation to the Contractors, it was a mere contract of hiring, as contended on behalf of the appellant Corporation, or a sale or a hire purchase, as contended on behalf of the respondent State. The law on the subject is not in doubt, but the difficulty arises in applying that law to the facts and circumstances of a particular case on a proper construction of the document evidencing the transaction between the parties. It is well settled that a mere contract of hiring, without more, is a species of the contract of bailment which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories, and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question, which does not arise here may arise as to what exactly were the rights and obligations of the parties to the original contract. It is equally well settled that for the purpose of determining as to which category a particular contract comes under, the Court will look at the substance of the agreement and not at the mere words describing the category. One of the tests to determine the question whether a particular agreement is a contract of mere hiring or whether it is a contract of purchase on a system of deferred payments of the purchase price is whether there is any binding obligation on the hirer to purchase the goods. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale, vide Helby v. Matthews, 1895 AC 471. Applying these two tests to the transaction in the present case, it becomes clear that it was a case of sale of goods with a condition of re-purchase on certain conditions depending upon the satisfaction of the Corporation as to whether the "residual life" of the machinery or the equipment was not less than one-third of the standard life in accordance with the terms agreed between the parties. It is clear on those terms that there is no right reserved to the contractors to return the goods at any time that they found it convenient or necessary. On the other hand, they were bound to pay two-thirds of the total approximate price fixed by the parties in equal instalments. The Contractors were not bound under the terms to return any of the machinery or the equipments nor was the Corporation bound to take them back unconditionally. The term in the agreement regarding the "taking over" of the machinery or equipments by the Corporation on payment of the "residual value" is wholly inconsistent with a contract of mere hiring and is more consistent with the property in the goods having passed to the Contractors, subject to the payment of all the instalments of the purchase price. Furthermore, the stipulation that the Contractors themselves will have to supply the spare parts, as and when needed, for replacements of the worn out parts is also consistent with the case of the respondent that title had passed to the contractors and that they were responsible for the upkeep of the machinery and equipments and for depreciation. If it were a mere contract of hiring, the owner of the goods would have continued to be liable for replacements of worn out parts and for depreciation. Applying those tests to the terms of the agreement between the parties, it is clear that the transaction was a sale on deferred payments with an option to re-purchase and not a mere contract of hiring, as contended on behalf of the appellant.
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### Explanation:
In our opinion, these additional grounds are not open. They were never raised at any stage of the proceedings before the authorities below, or in the High Court. This Court is sitting in appeal over the decision of the High Court under S. 25 of the Act. The High Court in coming to its conclusion was acting only in an advisory capacity. It is well settled that the High Court acting in its advisory capacity under the taxing statute cannot go beyond the questions referred to it, or on a reference called by it. The scope of the appeal to this Court, even by special leave, cannot be extended beyond the scope of the controversy that could have been legally raised before the High Court. It is manifest that the High Court could not have expressed its opinion on any matter other than the question actually before it as a result of the reference made by the Board of Revenue. The preliminary objection must, therefore, be allowed and the appeal limited to the questionwhether the transaction in question in this case amounted to a sale within the meaning of the Act8. Those substantially are the terms of the contract between the parties and the sole question for determination in this appeal iswhether, in respect of the machinery and equipments admittedly supplied by the Corporation to the Contractors, it was a mere contract of hiring, as contended on behalf of the appellant Corporation, or a sale or a hire purchase, as contended on behalf of the respondent State.The law on the subject is not in doubt, but the difficulty arises in applying that law to the facts and circumstances of a particular case on a proper construction of the document evidencing the transaction between the parties. It is well settled that a mere contract of hiring, without more, is a species of the contract of bailment which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories, and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question, which does not arise here may arise as to what exactly were the rights and obligations of the parties to the original contract. It is equally well settled that for the purpose of determining as to which category a particular contract comes under, the Court will look at the substance of the agreement and not at the mere words describing the category. One of the tests to determine the question whether a particular agreement is a contract of mere hiring or whether it is a contract of purchase on a system of deferred payments of the purchase price is whether there is any binding obligation on the hirer to purchase the goods. Another useful test to determine such a controversy is whether there is a right reserved to the hirer to return the goods at any time during the subsistence of the contract. If there is such a right reserved, then clearly there is no contract of sale,Applying these two tests to the transaction in the present case, it becomes clear that it was a case of sale of goods with a condition of re-purchase on certain conditions depending upon the satisfaction of the Corporation as to whether the "residual life" of the machinery or the equipment was not less than one-third of the standard life in accordance with the terms agreed between the parties. It is clear on those terms that there is no right reserved to the contractors to return the goods at any time that they found it convenient or necessary. On the other hand, they were bound to pay two-thirds of the total approximate price fixed by the parties in equal instalments. The Contractors were not bound under the terms to return any of the machinery or the equipments nor was the Corporation bound to take them back unconditionally. The term in the agreement regarding the "taking over" of the machinery or equipments by the Corporation on payment of the "residual value" is wholly inconsistent with a contract of mere hiring and is more consistent with the property in the goods having passed to the Contractors, subject to the payment of all the instalments of the purchase price. Furthermore, the stipulation that the Contractors themselves will have to supply the spare parts, as and when needed, for replacements of the worn out parts is also consistent with the case of the respondent that title had passed to the contractors and that they were responsible for the upkeep of the machinery and equipments and for depreciation. If it were a mere contract of hiring, the owner of the goods would have continued to be liable for replacements of worn out parts and for depreciation. Applying those tests to the terms of the agreement between the parties, it is clear that the transaction was a sale on deferred payments with an option to re-purchase and not a mere contract of hiring, as contended on behalf of the appellant.
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H.D. Vora Vs. State of Maharashtra and Others | the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act, 1894. We do not think that the government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premisses being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely. Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent.There was also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is concerned. This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of hi s occupation of the flat or make him a tenant of Rukmanibai in respect of the flat.5. We are therefore of the view that the High Court was right in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent. W | 0[ds]Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent.Therewas also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is concerned.This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of hi s occupation of the flat or make him a tenant of Rukmanibai in respect of theare therefore of the view that the High Court was right in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent. | 0 | 2,640 | 651 | ### Instruction:
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the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act, 1894. We do not think that the government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premisses being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely. Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent.There was also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is concerned. This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of hi s occupation of the flat or make him a tenant of Rukmanibai in respect of the flat.5. We are therefore of the view that the High Court was right in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent. W
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Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent.Therewas also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is concerned.This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of hi s occupation of the flat or make him a tenant of Rukmanibai in respect of theare therefore of the view that the High Court was right in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent.
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Bharat Kala Bhandar Ltd Vs. Municipal Committee, Dhamangaon | failure of the Municipal Committee to consider the objections to the proposed taxes:"Now there can be no question that the municipal committee, in imposing and collecting tax at four annas per animal, was acting exactly in accordance with S. 68. It must be observed that there is a difference between a case when a corporate body exercises a power which is wholly absent and a case where it has power but it exercises it illegally or with material irregularity. In the former case the municipal committees act from beginning to end is illegal; whereas in the latter case the act is quite legal in the beginning but becomes illegal in the end." again he said:"In enhancing the tax and collecting it the municipal committee was certainly exercising although irregularly, the power conferred on it by S. 68 and to that extent it appears to me that the contention that they were not acting under the statute is untenable." 66. The views expressed by Niyogi, J., we may say with respect, find full support from Raleighs case, 74 Ind App 50: (AIR 1947 PC 78 ) and Subbayya Chettys case, (1964) 1 SCR 752 : (AIR 1964 SC 322 ). Amraoti Municipal Committees case, ILR (1939) Nag 216: (AIR 1938 Nag 455), was in a way on all fours with the present case. In that case the Municipal Committee over looked the provision of law about considering the objections to the proposed enhancement in tax. In the present case the Committee overlooked the constitutional requirement that the maximum limit of the tax payable by a single individual is Rs. 250. 67. The next case is ILR 1949 Nag 87: (AIR 1949 Nag 190). In this case the question before Bose, J., was whether a suit for the recovery of an amount recovered in excess of what could be legally taxed came within the mischief of S. 71 and S. 73 (1) of the Central Provinces Local Self-Government Act, 1920 (C. P. IV of 1920). Bose, J., said at p. 92 (of ILR Nag): (at p. 192 of AIR):"It will be observed that both S. 79 and the rule are confined to orders and decisions given under the Act. It is impossible to say that an order which contravenes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words purporting to be given or made under the Act are not present in this section and so the difficulty which arises regarding the other point is not present here." We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act. Neither of the expressions refer to the order or decision being correct or not. 68. Section 73 of the Central Provinces Local Self-Government Act prescribed that no suit shall be instituted, etc........for anything done or purporting to be done under that Act, unless the prescribed notice be first given. Bose, J., presumably in view of what he had said earlier in connection with orders and decisions given under the Act, said:"I am clear that what was done here was not done under the Act, so the only question is whether it purported to be done under the Act". In these observations he seems to have equated the expression given under the Act with done under the Act. His view, as we have already pointed out with reference to something done under the Act, does not find support from Raleighs case, 74 Ind App 50: (AIR 1947 PC 78 ) and Subbayya Chettys case (1964) 1 SCR 752 : (AIR 1964 SC 322 ). Bose, J., then considered the content of the expression purported to be done. We need not discuss what he says on this point as we have held that the assessment made on the appellant was an assessment made under the Act and that the act of illegal collection with respect to the amount in excess was an act done under the Act. 69. The appellant mainly relied on the Nagpur case reported as ILR (1948) Nag 971: (AIR 1949 Nag 215). It was held in that case that a suit for refund of a tax illegally imposed by the Municipal Committee was not barred by reason of Ss. 48, 83 and 84 of the Central Provinces Municipalities Act as the Municipal Committee did not act or purport to act under the Act in imposing the illegal tax. Bose, Acting C. J., delivering the judgment, relied on his earlier decision in District Council, Bhandara case, ILR 1949 Nag 87: (AIR 1949 Nag 190), and held that the claim for the recovery of the tax illegally realised in excess of the permissible limit were not barred by reason of Ss. 83 and 84. He then referred to S. 48 and, after stating that the act of the Municipality when prohibited by law was wholly beyond its jurisdiction and, therefore, S. 48 did not apply, said:"The distinction between a case where S. 48 applies and a case where it does not is clearly shown in ILR 1939 Nag 216: (AIR 1938 Nag 455)." We have referred to this case and expressed full agreement with the views expressed by Niyogi, J. there. It appears to us that the full significance of that judgment has been overlooked in Municipal Committee, Karanja case, ILR (1948) Nag 971: (AIR 1949 Nag 215). 70. We hold that the appellants suit for the recovery of the tax realised in excess of Rs. 250 a year has been rightly dismissed as the correctness of the assessment of the tax could not be challenged by a suit in a civil Court in view of S. 84 (3) and as the provisions of S. 48 requiring the giving of notice to the Municipality and the institution of the suit within a certain period had not been complied with. We would, therefore, dismiss the appeal with costs. ORDER | 1[ds]As we have said, that is not the case here because its action is something which is prohibited by law, and so wholly beyond its jurisdiction, and, therefore, S. 48 does not apply18. The levy of a tax on professions, trades, callings, etc., was within the power of the Provincial Legislature and is now within the power of the State Legislature. It could in the past and can even now levy such a tax at the rate of four annas per bojha and four annas per bale, that both under S. 142-A of the Government of India Act and Art. 276 of the Constitution the Municipal Committee could collect such a tax up to the constitutional limit (which was formerly Rs. 50 p.a. and is after the coming into force of the Constitution Rs. 250 p.a.). The mischief, according to him, is not in the levy but in the realisation of an excess over the limit. To put it differently, the ban is not upon the rate of tax but upon excess collection thereof. Therefore, the collection of a tax above the constitutional limit was not without jurisdiction but only illegal or irregular. A suit by an assessee to recover the amount paid by him in excess of the constitutional limit would, therefore, be in respect of a matter "purported to be done" under the Act and the provisions of S. 48 of the Act would apply to it. Further according to him every suit against a Committee for anything done or purported to be done under the Act must comply with the conditions laid down in the section. He points out that the assessment of the tax was made by an authority competent to make an assessment, that in making it the authority proceeded in accordance with the provisions of the Act and assessed the tax as authorised by Rules which had been sanctioned by the former Government of Central Provinces and Berar. So, even if it is assumed that any of the Rules were ultra vires and, therefore, the assessment and recovery of the tax was illegal, what the authority had done was something purported to be done under the Act. Some of these arguments were advanced in cases discussed earlier and rejectedSection 85 empowers the State Govt. to make rules for regulating the refund of taxes, and such rules may impose limitations on such refunds. Sub-section (2) thereof provides that no refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and the rules made thereunder. This sub-section can be availed only if the Act or the rules provided for making a claim for refund. The rules relating to refunds, if there are any, were, however, not placed before us. Nor was our attention drawn to any provision of the Act or to any rule which makes it obligatory upon a person to apply to the Municipal Committee for a refund of a tax. Even assuming that the Act contemplates obtaining a refund only upon compliance with rules made thereunder, does it contemplate cases where refund or repayment on the ground of the constitutionality of the levy? It will be noticed that sub-s. (1) of this section, empowers the State Govt. to impose by rules limitations on the refunds-presumably including limitation on the amount of refunds-and sub-s. (2) bars a claim for refund otherwise than in accordance with the rules made under sub-s. (1). These provisions cannot possibly apply to a case where the right to obtain a refund or repayment is based upon the ground that the action of the Committee was in violation of a constitutional provision. To hold otherwise would lead to the startling result that what was incompetent to the State Legislature to do or authorise a committee to do directly can be permitted to be done indirectly by empowering the State Govt. to make rules for refund whereunder the amount of refunds could be so limited as to permit retention by the committee of the tax recovered by it in excess of the constitutional limit. In our view, therefore, S. 85 of the Act cannot, in any event, be said to provide a machinery for obtaining refunds in cases of this kind. Since S. 85 is inapplicable, a fortiori S. 83 cannot apply either. We must therefore proceed on the footing that the Act does not provide a machinery for making a claim for refund or repayment in such casesIn the circumstances it must be held that even in the class of cases to which the provisions of Ss. 83 and 85 of the Municipalities Act apply they cannot be said to provide a sufficiently effective remedy to an assessee to challenge the assessment made against him or to a person who is aggrieved by the action of the Committee levying or refusing to refund a tax. It is true that Sub-s. (2) of S. 83 provides for a reference to the High Court but even that provision cannot be said to be a sufficiently efficacious remedy for challenging the assessment made on an assessee. For whether to make a reference or not is at the discretion of the appellate or revisional authority and the Act does not confer upon the person aggrieved a right to move the High Court, as does the Income-tax Act, to require a reference to be made in an appropriate case. We may again point out that there is a complete absence of a provision corresponding to S. 67 of the Indian Income Tax Act barring the institution of a suit in so far as refusal of refund of a tax is concernedThe Court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution. So, whatever be the position with respect to S. 67 of the Indian Income-tax Act, so far as S. 83 (3) of the Act is concerned, we find it reasonably possible to construe it as not depriving a person of his right to obtain redress from a civil court in respect of an amount recovered from him as a tax in violation of Art. 276 of the ConstitutionThe appellant has not sought to modify or set aside any order made by an authority acting or purporting to act under the Act. No doubt, the relief of repayment is claimed on the ground that the enhancement of the rate is unconstitutional. No doubt also that the appellant had sought a further relief of injunction. As regards the first, the position is that the High Court of Nagpur has held, in the petition under Art. 226 preferred by the appellant, the enhancement to be unlawful. This decision was rendered by the Court during the pendency of the suit and was binding on the civil Court in which the suit was pending and has been in fact followed by it. As regards the relief of injunction, that relief became unnecessary because of the order made by the High Court in the Writ petition. It is apparently for this reason that the civil Court did not award that relief to the appellant. In view of the High Courts decision it was not at all necessary for the trial Court to consider in the suit before it the question of the validity of the assessment by or collection of the tax but only to ascertain the amount which was payable to the appellant and whether the suit was barred under S. 48 or S. 85 (2) as contended by the respondent. In these circumstances, we are of opinion that the appellants suit cannot be said to be barred even if we interpret S. 84 (3) of the Municipalities Act in the same way as the Privy Council interpreted S. 67 of the Indian Income-tax ActThere is a real distinction between those cases where a suit was held to be incompetent and the kind of cases which we have before us. Thus where the question merely is, whether the assessment had been made according to law, the Assessing Officer of the Municipality having jurisdiction on the subject-matter and over the assessee the provisions of S. 84 (3) may be a bar to a suit. Where, however, the question raised is as to the jurisdiction of the Assessing Officer to proceed against the assessee and levy on or collect from him an amount in excess of that permitted by the Constitution, the matter would be entirely out of the bar of that provision. Here since the Assessing Officer had no authority to levy a tax beyond what S. 142-A ofthe Government of India Act, 1935 permitted or what Art. 276 permits his proceedings are void in so far as they purport to levy a tax in excess of the permissible amount and authorise its collection and the assessment order is no answer to the suit for the recovery of the excess amount. To this extent, even the order of assessment cannot obtain the protection of S. 84 (3) of the Act and, therefore, the appellants suit is maintainable. | 1 | 19,089 | 1,666 | ### Instruction:
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failure of the Municipal Committee to consider the objections to the proposed taxes:"Now there can be no question that the municipal committee, in imposing and collecting tax at four annas per animal, was acting exactly in accordance with S. 68. It must be observed that there is a difference between a case when a corporate body exercises a power which is wholly absent and a case where it has power but it exercises it illegally or with material irregularity. In the former case the municipal committees act from beginning to end is illegal; whereas in the latter case the act is quite legal in the beginning but becomes illegal in the end." again he said:"In enhancing the tax and collecting it the municipal committee was certainly exercising although irregularly, the power conferred on it by S. 68 and to that extent it appears to me that the contention that they were not acting under the statute is untenable." 66. The views expressed by Niyogi, J., we may say with respect, find full support from Raleighs case, 74 Ind App 50: (AIR 1947 PC 78 ) and Subbayya Chettys case, (1964) 1 SCR 752 : (AIR 1964 SC 322 ). Amraoti Municipal Committees case, ILR (1939) Nag 216: (AIR 1938 Nag 455), was in a way on all fours with the present case. In that case the Municipal Committee over looked the provision of law about considering the objections to the proposed enhancement in tax. In the present case the Committee overlooked the constitutional requirement that the maximum limit of the tax payable by a single individual is Rs. 250. 67. The next case is ILR 1949 Nag 87: (AIR 1949 Nag 190). In this case the question before Bose, J., was whether a suit for the recovery of an amount recovered in excess of what could be legally taxed came within the mischief of S. 71 and S. 73 (1) of the Central Provinces Local Self-Government Act, 1920 (C. P. IV of 1920). Bose, J., said at p. 92 (of ILR Nag): (at p. 192 of AIR):"It will be observed that both S. 79 and the rule are confined to orders and decisions given under the Act. It is impossible to say that an order which contravenes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words purporting to be given or made under the Act are not present in this section and so the difficulty which arises regarding the other point is not present here." We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act. Neither of the expressions refer to the order or decision being correct or not. 68. Section 73 of the Central Provinces Local Self-Government Act prescribed that no suit shall be instituted, etc........for anything done or purporting to be done under that Act, unless the prescribed notice be first given. Bose, J., presumably in view of what he had said earlier in connection with orders and decisions given under the Act, said:"I am clear that what was done here was not done under the Act, so the only question is whether it purported to be done under the Act". In these observations he seems to have equated the expression given under the Act with done under the Act. His view, as we have already pointed out with reference to something done under the Act, does not find support from Raleighs case, 74 Ind App 50: (AIR 1947 PC 78 ) and Subbayya Chettys case (1964) 1 SCR 752 : (AIR 1964 SC 322 ). Bose, J., then considered the content of the expression purported to be done. We need not discuss what he says on this point as we have held that the assessment made on the appellant was an assessment made under the Act and that the act of illegal collection with respect to the amount in excess was an act done under the Act. 69. The appellant mainly relied on the Nagpur case reported as ILR (1948) Nag 971: (AIR 1949 Nag 215). It was held in that case that a suit for refund of a tax illegally imposed by the Municipal Committee was not barred by reason of Ss. 48, 83 and 84 of the Central Provinces Municipalities Act as the Municipal Committee did not act or purport to act under the Act in imposing the illegal tax. Bose, Acting C. J., delivering the judgment, relied on his earlier decision in District Council, Bhandara case, ILR 1949 Nag 87: (AIR 1949 Nag 190), and held that the claim for the recovery of the tax illegally realised in excess of the permissible limit were not barred by reason of Ss. 83 and 84. He then referred to S. 48 and, after stating that the act of the Municipality when prohibited by law was wholly beyond its jurisdiction and, therefore, S. 48 did not apply, said:"The distinction between a case where S. 48 applies and a case where it does not is clearly shown in ILR 1939 Nag 216: (AIR 1938 Nag 455)." We have referred to this case and expressed full agreement with the views expressed by Niyogi, J. there. It appears to us that the full significance of that judgment has been overlooked in Municipal Committee, Karanja case, ILR (1948) Nag 971: (AIR 1949 Nag 215). 70. We hold that the appellants suit for the recovery of the tax realised in excess of Rs. 250 a year has been rightly dismissed as the correctness of the assessment of the tax could not be challenged by a suit in a civil Court in view of S. 84 (3) and as the provisions of S. 48 requiring the giving of notice to the Municipality and the institution of the suit within a certain period had not been complied with. We would, therefore, dismiss the appeal with costs. ORDER
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of the levy? It will be noticed that sub-s. (1) of this section, empowers the State Govt. to impose by rules limitations on the refunds-presumably including limitation on the amount of refunds-and sub-s. (2) bars a claim for refund otherwise than in accordance with the rules made under sub-s. (1). These provisions cannot possibly apply to a case where the right to obtain a refund or repayment is based upon the ground that the action of the Committee was in violation of a constitutional provision. To hold otherwise would lead to the startling result that what was incompetent to the State Legislature to do or authorise a committee to do directly can be permitted to be done indirectly by empowering the State Govt. to make rules for refund whereunder the amount of refunds could be so limited as to permit retention by the committee of the tax recovered by it in excess of the constitutional limit. In our view, therefore, S. 85 of the Act cannot, in any event, be said to provide a machinery for obtaining refunds in cases of this kind. Since S. 85 is inapplicable, a fortiori S. 83 cannot apply either. We must therefore proceed on the footing that the Act does not provide a machinery for making a claim for refund or repayment in such casesIn the circumstances it must be held that even in the class of cases to which the provisions of Ss. 83 and 85 of the Municipalities Act apply they cannot be said to provide a sufficiently effective remedy to an assessee to challenge the assessment made against him or to a person who is aggrieved by the action of the Committee levying or refusing to refund a tax. It is true that Sub-s. (2) of S. 83 provides for a reference to the High Court but even that provision cannot be said to be a sufficiently efficacious remedy for challenging the assessment made on an assessee. For whether to make a reference or not is at the discretion of the appellate or revisional authority and the Act does not confer upon the person aggrieved a right to move the High Court, as does the Income-tax Act, to require a reference to be made in an appropriate case. We may again point out that there is a complete absence of a provision corresponding to S. 67 of the Indian Income Tax Act barring the institution of a suit in so far as refusal of refund of a tax is concernedThe Court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution. So, whatever be the position with respect to S. 67 of the Indian Income-tax Act, so far as S. 83 (3) of the Act is concerned, we find it reasonably possible to construe it as not depriving a person of his right to obtain redress from a civil court in respect of an amount recovered from him as a tax in violation of Art. 276 of the ConstitutionThe appellant has not sought to modify or set aside any order made by an authority acting or purporting to act under the Act. No doubt, the relief of repayment is claimed on the ground that the enhancement of the rate is unconstitutional. No doubt also that the appellant had sought a further relief of injunction. As regards the first, the position is that the High Court of Nagpur has held, in the petition under Art. 226 preferred by the appellant, the enhancement to be unlawful. This decision was rendered by the Court during the pendency of the suit and was binding on the civil Court in which the suit was pending and has been in fact followed by it. As regards the relief of injunction, that relief became unnecessary because of the order made by the High Court in the Writ petition. It is apparently for this reason that the civil Court did not award that relief to the appellant. In view of the High Courts decision it was not at all necessary for the trial Court to consider in the suit before it the question of the validity of the assessment by or collection of the tax but only to ascertain the amount which was payable to the appellant and whether the suit was barred under S. 48 or S. 85 (2) as contended by the respondent. In these circumstances, we are of opinion that the appellants suit cannot be said to be barred even if we interpret S. 84 (3) of the Municipalities Act in the same way as the Privy Council interpreted S. 67 of the Indian Income-tax ActThere is a real distinction between those cases where a suit was held to be incompetent and the kind of cases which we have before us. Thus where the question merely is, whether the assessment had been made according to law, the Assessing Officer of the Municipality having jurisdiction on the subject-matter and over the assessee the provisions of S. 84 (3) may be a bar to a suit. Where, however, the question raised is as to the jurisdiction of the Assessing Officer to proceed against the assessee and levy on or collect from him an amount in excess of that permitted by the Constitution, the matter would be entirely out of the bar of that provision. Here since the Assessing Officer had no authority to levy a tax beyond what S. 142-A ofthe Government of India Act, 1935 permitted or what Art. 276 permits his proceedings are void in so far as they purport to levy a tax in excess of the permissible amount and authorise its collection and the assessment order is no answer to the suit for the recovery of the excess amount. To this extent, even the order of assessment cannot obtain the protection of S. 84 (3) of the Act and, therefore, the appellants suit is maintainable.
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Commissioner Of Income-Tax,West Bengal Vs. Messrs. Jeewanlal Ltd | of its shareholders. In this sense, the directors of the company may well be regarded as having "a controlling interest" in the company when they hold and are entered in the share register as holders of the majority of the shares which under the Articles of Association of the company, carry the right to vote.See -Glasgow Expanded Metal Co., Ltd. v. Commrs. of Inland Revenue, (1923) 12 Tax Cas 573 (A) and - The Commrs. of Inland Revenue v. B. W. Noble, (1926) 12 Tax Cas 911 (B),It is not, however, necessary that in order to have "a controlling interest" the person or persons who hold the majority of the vote-carrying shares must have a beneficial interest in the shares held by them. These persons may hold the shares as trustees and may even be accountable to their beneficiaries and may be brought to book for exercising their votes in breach of trust, nevertheless, as between them as shareholders and the company, they are the shareholders, and as such have "a controlling interest" in the company.See Inland Revenue Commrs. v. J. Bibby and Sons Ltd. (l946) 14 I T R (Supp.) 7 (C) and - Commr. of Income-tax v. Bipin Silk Milis Ltd., AIR 1947 Bom. 45 (D).According to the facts found in the statement of the case the directors of the respondent company do not themselves hold the majority of shares which, on the contrary, are registered in the name of the Aluminium Ltd. and, therefore, according to the principles discussed above, they cannot be said to have "a controlling interest " in the respondent company.7. Learned counsel for the respondent company, however, contends, on the analogy of the reasonings adopted by the House of Lords in British American Tobacco Co. Ltd. v. Commrs. of Inland Revenue, (1943) AC (E), that although Mr. L. G. Bash does not hold the majority of shares and has no beneficial interest in the shares held by the Aluminium Ltd. in the respondent company and although he may be bound to cast the votes according to the directions of his principals, the Aluminium Ltd., and may be answerable to the latter if he acts in breach at his duty, nevertheless, as long as his authority is not revoked, as far as the respondent company is concerned, the majority of its vote carrying shares are subject directly or indirectly, to his will and ordering and, therefore, the directors of the respondent company in fact control its affairs at general meetings and as such have "a controlling interest" therein, no matter by what machinery or means that result has been effected. This line of argument found favour with the Appellate Tribunal and the High Court.We are unable, with all respect, to accept this argument as sound, for this argument appears to us to oversimplify the position. Assuming, but without expressing any final opinion as to the correctness of the decision in the last mentioned case, we have no doubt that the analogy is inapt, for the principle of that decision can have no application to the case before us.In the case of directors, who hold the majority of shares as trustees they, so far as the company is concerned, are the registered shareholders and the right to vote is vested in them, although as between them and their beneficiaries the beneficial interest is vested in the latter. They are the registered holders of the shares and the votes they cast are their own votes. That case is entirely different from the case of directors who are only the agents of the holders of the majority of shares.When a shareholder holding the majority of shares authorises an agent to vote for him in respect of the shares so held by him the agent acquires no interest, legal or beneficial, in the shares. The title in the shares remains vested in the shareholder. The shareholder may revoke the authority of the agent at any time. In spite of the appointment of the agent the shareholder may himself appear at the meeting and cast his votes personally. Therefore, the shares being always subject to his will and ordering, the controlling interest which the holder of the majority of shares has never passes to the agent.Let us take the facts of the present case. Under Art. 90, when Mr. L. G. Bash as agent of the Aluminium Ltd. attends a general meeting of the respondent company he has to produce the resolution of his principals authorising him to cast the votes of his principals. The votes he casts are not his votes but are the votes of the Aluminium Ltd. In such a situation, in the eye of the law, the controlling interest remains vested in the Aluminium Ltd., and is at no time vested in Mr. L. G. Bash. The shares in question which give the controlling interest are neither held by Mr. L. G. Bash nor are they subject, directly or indirectly to his will and ordering, and, therefore, he cannot, applying either of the tests mentioned above, be said to have a controlling interest. The decision of the Court of Appeal in -- Commrs. of Inland Revenue v. James Hodgkinson (Salford) Ltd., (1949) 29 Tax Cas 395 (F) appears to us to be apposite. It is unfortunate that the last mentioned case was not brought to the notice of the High Court before the judgment under appeal was delivered.8. Dissent has been expressed in the judgment under appeal from the recent decision of the Bombay High Court in - New Shorrock Spinning and Manufacturing Co. Ltd. v. Commr of Income-tax, Bombay, AIR 1950 Bom 391 (G). The facts of that case are entirely different from the facts of the case before us and that decision has no manner of application to the present case. It is, therefore, unnecessary for us to discuss or express any opinion as to whether the observations to be found in the judgment in that case are or are not well founded. | 1[ds]6. In common parlance a person is said to have "a controlling interest" in a company when such a person acquires, by purchase or otherwise, the majority of the vote-carrying shares in that company, for the control of the company resides in the voting powers of its shareholders. In this sense, the directors of the company may well be regarded as having "a controlling interest" in the company when they hold and are entered in the share register as holders of the majority of the shares which under the Articles of Association of the company, carry the right toto the facts found in the statement of the case the directors of the respondent company do not themselves hold the majority of shares which, on the contrary, are registered in the name of the Aluminium Ltd. and, therefore, according to the principles discussed above, they cannot be said to have "a controlling interest " in the respondentare unable, with all respect, to accept this argument as sound, for this argument appears to us to oversimplify the position. Assuming, but without expressing any final opinion as to the correctness of the decision in the last mentioned case, we have no doubt that the analogy is inapt, for the principle of that decision can have no application to the case before us.In the case of directors, who hold the majority of shares as trustees they, so far as the company is concerned, are the registered shareholders and the right to vote is vested in them, although as between them and their beneficiaries the beneficial interest is vested in the latter. They are the registered holders of the shares and the votes they cast are their own votes. That case is entirely different from the case of directors who are only the agents of the holders of the majority of shares.When a shareholder holding the majority of shares authorises an agent to vote for him in respect of the shares so held by him the agent acquires no interest, legal or beneficial, in the shares. The title in the shares remains vested in the shareholder. The shareholder may revoke the authority of the agent at any time. In spite of the appointment of the agent the shareholder may himself appear at the meeting and cast his votes personally. Therefore, the shares being always subject to his will and ordering, the controlling interest which the holder of the majority of shares has never passes to the agent.Let us take the facts of the present case. Under Art. 90, when Mr. L. G. Bash as agent of the Aluminium Ltd. attends a general meeting of the respondent company he has to produce the resolution of his principals authorising him to cast the votes of his principals. The votes he casts are not his votes but are the votes of the Aluminium Ltd. In such a situation, in the eye of the law, the controlling interest remains vested in the Aluminium Ltd., and is at no time vested in Mr. L. G. Bash. The shares in question which give the controlling interest are neither held by Mr. L. G. Bash nor are they subject, directly or indirectly to his will and ordering, and, therefore, he cannot, applying either of the tests mentioned above, be said to have a controlling interest.Dissent has been expressed in the judgment under appeal from the recent decision of the Bombay High Court in - New Shorrock Spinning and Manufacturing Co. Ltd. v. Commr of Income-tax, Bombay, AIR 1950 Bom 391 (G). The facts of that case are entirely different from the facts of the case before us and that decision has no manner of application to the present case. | 1 | 2,084 | 682 | ### Instruction:
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of its shareholders. In this sense, the directors of the company may well be regarded as having "a controlling interest" in the company when they hold and are entered in the share register as holders of the majority of the shares which under the Articles of Association of the company, carry the right to vote.See -Glasgow Expanded Metal Co., Ltd. v. Commrs. of Inland Revenue, (1923) 12 Tax Cas 573 (A) and - The Commrs. of Inland Revenue v. B. W. Noble, (1926) 12 Tax Cas 911 (B),It is not, however, necessary that in order to have "a controlling interest" the person or persons who hold the majority of the vote-carrying shares must have a beneficial interest in the shares held by them. These persons may hold the shares as trustees and may even be accountable to their beneficiaries and may be brought to book for exercising their votes in breach of trust, nevertheless, as between them as shareholders and the company, they are the shareholders, and as such have "a controlling interest" in the company.See Inland Revenue Commrs. v. J. Bibby and Sons Ltd. (l946) 14 I T R (Supp.) 7 (C) and - Commr. of Income-tax v. Bipin Silk Milis Ltd., AIR 1947 Bom. 45 (D).According to the facts found in the statement of the case the directors of the respondent company do not themselves hold the majority of shares which, on the contrary, are registered in the name of the Aluminium Ltd. and, therefore, according to the principles discussed above, they cannot be said to have "a controlling interest " in the respondent company.7. Learned counsel for the respondent company, however, contends, on the analogy of the reasonings adopted by the House of Lords in British American Tobacco Co. Ltd. v. Commrs. of Inland Revenue, (1943) AC (E), that although Mr. L. G. Bash does not hold the majority of shares and has no beneficial interest in the shares held by the Aluminium Ltd. in the respondent company and although he may be bound to cast the votes according to the directions of his principals, the Aluminium Ltd., and may be answerable to the latter if he acts in breach at his duty, nevertheless, as long as his authority is not revoked, as far as the respondent company is concerned, the majority of its vote carrying shares are subject directly or indirectly, to his will and ordering and, therefore, the directors of the respondent company in fact control its affairs at general meetings and as such have "a controlling interest" therein, no matter by what machinery or means that result has been effected. This line of argument found favour with the Appellate Tribunal and the High Court.We are unable, with all respect, to accept this argument as sound, for this argument appears to us to oversimplify the position. Assuming, but without expressing any final opinion as to the correctness of the decision in the last mentioned case, we have no doubt that the analogy is inapt, for the principle of that decision can have no application to the case before us.In the case of directors, who hold the majority of shares as trustees they, so far as the company is concerned, are the registered shareholders and the right to vote is vested in them, although as between them and their beneficiaries the beneficial interest is vested in the latter. They are the registered holders of the shares and the votes they cast are their own votes. That case is entirely different from the case of directors who are only the agents of the holders of the majority of shares.When a shareholder holding the majority of shares authorises an agent to vote for him in respect of the shares so held by him the agent acquires no interest, legal or beneficial, in the shares. The title in the shares remains vested in the shareholder. The shareholder may revoke the authority of the agent at any time. In spite of the appointment of the agent the shareholder may himself appear at the meeting and cast his votes personally. Therefore, the shares being always subject to his will and ordering, the controlling interest which the holder of the majority of shares has never passes to the agent.Let us take the facts of the present case. Under Art. 90, when Mr. L. G. Bash as agent of the Aluminium Ltd. attends a general meeting of the respondent company he has to produce the resolution of his principals authorising him to cast the votes of his principals. The votes he casts are not his votes but are the votes of the Aluminium Ltd. In such a situation, in the eye of the law, the controlling interest remains vested in the Aluminium Ltd., and is at no time vested in Mr. L. G. Bash. The shares in question which give the controlling interest are neither held by Mr. L. G. Bash nor are they subject, directly or indirectly to his will and ordering, and, therefore, he cannot, applying either of the tests mentioned above, be said to have a controlling interest. The decision of the Court of Appeal in -- Commrs. of Inland Revenue v. James Hodgkinson (Salford) Ltd., (1949) 29 Tax Cas 395 (F) appears to us to be apposite. It is unfortunate that the last mentioned case was not brought to the notice of the High Court before the judgment under appeal was delivered.8. Dissent has been expressed in the judgment under appeal from the recent decision of the Bombay High Court in - New Shorrock Spinning and Manufacturing Co. Ltd. v. Commr of Income-tax, Bombay, AIR 1950 Bom 391 (G). The facts of that case are entirely different from the facts of the case before us and that decision has no manner of application to the present case. It is, therefore, unnecessary for us to discuss or express any opinion as to whether the observations to be found in the judgment in that case are or are not well founded.
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6. In common parlance a person is said to have "a controlling interest" in a company when such a person acquires, by purchase or otherwise, the majority of the vote-carrying shares in that company, for the control of the company resides in the voting powers of its shareholders. In this sense, the directors of the company may well be regarded as having "a controlling interest" in the company when they hold and are entered in the share register as holders of the majority of the shares which under the Articles of Association of the company, carry the right toto the facts found in the statement of the case the directors of the respondent company do not themselves hold the majority of shares which, on the contrary, are registered in the name of the Aluminium Ltd. and, therefore, according to the principles discussed above, they cannot be said to have "a controlling interest " in the respondentare unable, with all respect, to accept this argument as sound, for this argument appears to us to oversimplify the position. Assuming, but without expressing any final opinion as to the correctness of the decision in the last mentioned case, we have no doubt that the analogy is inapt, for the principle of that decision can have no application to the case before us.In the case of directors, who hold the majority of shares as trustees they, so far as the company is concerned, are the registered shareholders and the right to vote is vested in them, although as between them and their beneficiaries the beneficial interest is vested in the latter. They are the registered holders of the shares and the votes they cast are their own votes. That case is entirely different from the case of directors who are only the agents of the holders of the majority of shares.When a shareholder holding the majority of shares authorises an agent to vote for him in respect of the shares so held by him the agent acquires no interest, legal or beneficial, in the shares. The title in the shares remains vested in the shareholder. The shareholder may revoke the authority of the agent at any time. In spite of the appointment of the agent the shareholder may himself appear at the meeting and cast his votes personally. Therefore, the shares being always subject to his will and ordering, the controlling interest which the holder of the majority of shares has never passes to the agent.Let us take the facts of the present case. Under Art. 90, when Mr. L. G. Bash as agent of the Aluminium Ltd. attends a general meeting of the respondent company he has to produce the resolution of his principals authorising him to cast the votes of his principals. The votes he casts are not his votes but are the votes of the Aluminium Ltd. In such a situation, in the eye of the law, the controlling interest remains vested in the Aluminium Ltd., and is at no time vested in Mr. L. G. Bash. The shares in question which give the controlling interest are neither held by Mr. L. G. Bash nor are they subject, directly or indirectly to his will and ordering, and, therefore, he cannot, applying either of the tests mentioned above, be said to have a controlling interest.Dissent has been expressed in the judgment under appeal from the recent decision of the Bombay High Court in - New Shorrock Spinning and Manufacturing Co. Ltd. v. Commr of Income-tax, Bombay, AIR 1950 Bom 391 (G). The facts of that case are entirely different from the facts of the case before us and that decision has no manner of application to the present case.
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State Of Madhya Pradesh And Ors Vs. Krishnarao Shinde And Ors | by the summary proceeding provided for under that section 5. As stated earlier, the High Court had, in the earlier proceeding, held that the Company was not a pakka tenant. That Judgment of the High Court became final by the unconditional withdrawal of the appeal filed in this Court against it. The Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act 66 of 1950), which was the law in force until repealed by the M.P. Land Revenue Code, 1959, defined "pakka tenant" as follows "54. (vii) Pakka tenant - means a tenant who has been or whose predecessor in interest had been lawful recorded in respect of his holding as a Ryot Pattedar, Mamuli Maurusi, Gair Maurusi, and Pukhta Maurusi when this Act comes into force or who may in future be duly recognised as such by a competent authorityExplanation. - The terms Pukhta Maurusi includes Istmurardar tenants, Malikana Haq-holder tenants, Hakkiyat Mutafarrikat Sharah Muayyana and Sakitul Milkiyat tenants." 6. An ordinary tenant is defined by Act 66 of 1950 as "a tenant other than a pakka tenant and shall not include sub-tenant." The position, therefore, was that, in terms of Act 66 of 1950, the Company was not a pakka tenant, as found by the High Court in the earlier judgment, and, therefore, it was, according to the said Act, an ordinary tenant 7. The High Court had found in the earlier proceeding that the land in question was held by the Company under lease from the government after it had been acquired by the government for a public purpose of the State. The question, therefore, is whether the Company was, as found by the Additional Collector, a government lessee within the meaning of the Code. It is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the government to enable the Company to remain in possession of the land as a lessee. The Company is thus a person holding the land from the State Government. This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee. In either event, the Company has been holding the land from the State. It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya Pradesh State 8. A government lessee is defined under the M.P. Land Revenue Code, 1959 as "a person holding land from the State Government under Section 181". Section 181 of the Code reads "181. Government lessees. - (1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a bhumiswami shall be called a government lessee in respect of such land (2) Every person who at the coming into force of this Code - (a) holds any land in the Madhya Bharat region as an ordinary tenant as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950); or (b) * * * (c) * * * shall be deemed to be a government lessee in respect of such land." * 9. These provisions show that whether or not the Company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land from the State Government and it has never been an ordinary tenant as defined in Madhya Bharat Act 66 of 1950. Accordingly, whether considered in terms of sub-section (1) or sub-section (2) of Section 181, the Company has been at all material times a government lessee in respect of the land in question. Accordingly, Section 182 of the Code is attracted. That section reads "182. Rights and liabilities of government lessee. - (1) A government lessee shall, subject to any express provisions in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the Government Grants Act, 1895 (15 of 1895) (2) A government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely(i) that he has failed to pay the rent for a period of three months from the date on which it became due; or (ii) that he has used such land for purposes other than for which it was granted; or (iii) that the term of his lease has expired; or (iv) that he has contravened any of the terms and conditions of the grant Provided that no order for ejectment of a government lessee under this sub-section shall be passed without giving him an opportunity of being heard in his defence." 10. It was in terms of sub-section (2)(i) Section 182 that the Additional Collector made his order for eviction of the Company. The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings. His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due. In the circumstances, the Additional Collector was well justified in having recourse to be proceeding prescribed under Section 182 of the Code. The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law | 1[ds]t is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the government to enable the Company to remain in possession of the land as a lessee. The Company is thus a person holding the land from the State Government. This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee. In either event, the Company has been holding the land from the State. It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya PradeshIt was in terms of sub-section (2)(i) Section 182 that the Additional Collector made his order for eviction of the Company. The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings. His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due. In the circumstances, the Additional Collector was well justified in having recourse to be proceeding prescribed under Section 182 of the Code. The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law | 1 | 2,195 | 316 | ### Instruction:
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by the summary proceeding provided for under that section 5. As stated earlier, the High Court had, in the earlier proceeding, held that the Company was not a pakka tenant. That Judgment of the High Court became final by the unconditional withdrawal of the appeal filed in this Court against it. The Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act 66 of 1950), which was the law in force until repealed by the M.P. Land Revenue Code, 1959, defined "pakka tenant" as follows "54. (vii) Pakka tenant - means a tenant who has been or whose predecessor in interest had been lawful recorded in respect of his holding as a Ryot Pattedar, Mamuli Maurusi, Gair Maurusi, and Pukhta Maurusi when this Act comes into force or who may in future be duly recognised as such by a competent authorityExplanation. - The terms Pukhta Maurusi includes Istmurardar tenants, Malikana Haq-holder tenants, Hakkiyat Mutafarrikat Sharah Muayyana and Sakitul Milkiyat tenants." 6. An ordinary tenant is defined by Act 66 of 1950 as "a tenant other than a pakka tenant and shall not include sub-tenant." The position, therefore, was that, in terms of Act 66 of 1950, the Company was not a pakka tenant, as found by the High Court in the earlier judgment, and, therefore, it was, according to the said Act, an ordinary tenant 7. The High Court had found in the earlier proceeding that the land in question was held by the Company under lease from the government after it had been acquired by the government for a public purpose of the State. The question, therefore, is whether the Company was, as found by the Additional Collector, a government lessee within the meaning of the Code. It is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the government to enable the Company to remain in possession of the land as a lessee. The Company is thus a person holding the land from the State Government. This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee. In either event, the Company has been holding the land from the State. It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya Pradesh State 8. A government lessee is defined under the M.P. Land Revenue Code, 1959 as "a person holding land from the State Government under Section 181". Section 181 of the Code reads "181. Government lessees. - (1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a bhumiswami shall be called a government lessee in respect of such land (2) Every person who at the coming into force of this Code - (a) holds any land in the Madhya Bharat region as an ordinary tenant as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950); or (b) * * * (c) * * * shall be deemed to be a government lessee in respect of such land." * 9. These provisions show that whether or not the Company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land from the State Government and it has never been an ordinary tenant as defined in Madhya Bharat Act 66 of 1950. Accordingly, whether considered in terms of sub-section (1) or sub-section (2) of Section 181, the Company has been at all material times a government lessee in respect of the land in question. Accordingly, Section 182 of the Code is attracted. That section reads "182. Rights and liabilities of government lessee. - (1) A government lessee shall, subject to any express provisions in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the Government Grants Act, 1895 (15 of 1895) (2) A government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely(i) that he has failed to pay the rent for a period of three months from the date on which it became due; or (ii) that he has used such land for purposes other than for which it was granted; or (iii) that the term of his lease has expired; or (iv) that he has contravened any of the terms and conditions of the grant Provided that no order for ejectment of a government lessee under this sub-section shall be passed without giving him an opportunity of being heard in his defence." 10. It was in terms of sub-section (2)(i) Section 182 that the Additional Collector made his order for eviction of the Company. The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings. His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due. In the circumstances, the Additional Collector was well justified in having recourse to be proceeding prescribed under Section 182 of the Code. The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law
### Response:
1
### Explanation:
t is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the government to enable the Company to remain in possession of the land as a lessee. The Company is thus a person holding the land from the State Government. This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee. In either event, the Company has been holding the land from the State. It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya PradeshIt was in terms of sub-section (2)(i) Section 182 that the Additional Collector made his order for eviction of the Company. The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings. His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due. In the circumstances, the Additional Collector was well justified in having recourse to be proceeding prescribed under Section 182 of the Code. The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law
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Patel Madhavlal Parshottamdas Vs. Jaitaram Madhavlal and Others | 1. The Housing Society purchased lands bearing S. Nos. 2, 3 and 4 to construct houses for its members. Subsequently the society purchased S. No. 17 for putting up 38 bungalows at the first instance but later they decided to construct ten more bungalows. Applications were called for for allotment with a deposit of Rs. 5, 000. The present appellant as well as the first respondent deposited the money on July 2, 1959. It was resolved to allot the bungalows to the three persons, the first respondent, the appellant and one Lilachand Kalidas. Subsequently the General Body of the Society on November 22, 1964 confirmed the resolution. 2. The Society allotted the bungalow in dispute to the appellant. Along with it respondents 3, 4, 5, 7, 8, 9 and 10 were also allotted other bungalows. The first respondent was not allotted any bungalow. A dispute was raised between the appellant and the respondent and matter was referred to the Registrar who nominated his nominee to go into the dispute. The nominee allowed the claim of the first respondent. In pursuance of that decree of the nominee of the Registrar, first respondent filed an execution application. The City Civil Judge who heard the matter in Chambers on December 19, 1968 passed an order appointing a Commissioner to go into the application of the petitioner for executing the decree. The Commissioner after hearing the parties and checking the accounts reported that the appellants possession was illegal and the first respondent was entitled to possession of the bungalow. The City Civil Judge confirmed the order of the nominee of the Registrar. 3. Against the order of the City Civil Judge, the appellant preferred an appeal. In the appeal appellant contended that he was entitled to preference over the first respondent. He also submitted that between the other allottees viz., respondents 3, 4, 5, 7, 8, 9 and 10, he must be preferred and should be given one of the bungalows. The High Court while setting out the five contentions, did not go into the actual point for determination. It confirmed the finding of the City Civil Court that the first respondent is entitled to priority over the appellant but the question as to whether the appellant would be entitled to a bungalow in preference to the other respondents was not considered. The question has to be decided by the High Court. The matter is remitted to the High Court. The High Court will see that all the respondents to whom the houses were allotted are parties in the proceedings before it, if they are not the High Court will implead them and decide the question as to whether the appellant is entitled to preference over the other respondents. So far as the order of the High Court relating to the first respondent is concerned, it is confirmed. 4. The appellant is granted six months time to give vacant possession to the first respondent. In view of the short time given for vacating the bungalow, the High Court will expedite the matter. 5. The appellant will file an affidavit in this Court within six weeks from today undertaking not to induct any other person in the bungalow or in any way hamper the first respondent taking possession thereof at the expiry of six months time granted. | 1[ds]It confirmed the finding of the City Civil Court that the first respondent is entitled to priority over the appellant but the question as to whether the appellant would be entitled to a bungalow in preference to the other respondents was not considered. The question has to be decided by the High Court. The matter is remitted to the High Court. The High Court will see that all the respondents to whom the houses were allotted are parties in the proceedings before it, if they are not the High Court will implead them and decide the question as to whether the appellant is entitled to preference over the other respondents. So far as the order of the High Court relating to the first respondent is concerned, it is confirmed4. The appellant is granted six months time to give vacant possession to the first respondent. In view of the short time given for vacating the bungalow, the High Court will expedite the matter5. The appellant will file an affidavit in this Court within six weeks from today undertaking not to induct any other person in the bungalow or in any way hamper the first respondent taking possession thereof at the expiry of six months time granted. | 1 | 612 | 220 | ### 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:
1. The Housing Society purchased lands bearing S. Nos. 2, 3 and 4 to construct houses for its members. Subsequently the society purchased S. No. 17 for putting up 38 bungalows at the first instance but later they decided to construct ten more bungalows. Applications were called for for allotment with a deposit of Rs. 5, 000. The present appellant as well as the first respondent deposited the money on July 2, 1959. It was resolved to allot the bungalows to the three persons, the first respondent, the appellant and one Lilachand Kalidas. Subsequently the General Body of the Society on November 22, 1964 confirmed the resolution. 2. The Society allotted the bungalow in dispute to the appellant. Along with it respondents 3, 4, 5, 7, 8, 9 and 10 were also allotted other bungalows. The first respondent was not allotted any bungalow. A dispute was raised between the appellant and the respondent and matter was referred to the Registrar who nominated his nominee to go into the dispute. The nominee allowed the claim of the first respondent. In pursuance of that decree of the nominee of the Registrar, first respondent filed an execution application. The City Civil Judge who heard the matter in Chambers on December 19, 1968 passed an order appointing a Commissioner to go into the application of the petitioner for executing the decree. The Commissioner after hearing the parties and checking the accounts reported that the appellants possession was illegal and the first respondent was entitled to possession of the bungalow. The City Civil Judge confirmed the order of the nominee of the Registrar. 3. Against the order of the City Civil Judge, the appellant preferred an appeal. In the appeal appellant contended that he was entitled to preference over the first respondent. He also submitted that between the other allottees viz., respondents 3, 4, 5, 7, 8, 9 and 10, he must be preferred and should be given one of the bungalows. The High Court while setting out the five contentions, did not go into the actual point for determination. It confirmed the finding of the City Civil Court that the first respondent is entitled to priority over the appellant but the question as to whether the appellant would be entitled to a bungalow in preference to the other respondents was not considered. The question has to be decided by the High Court. The matter is remitted to the High Court. The High Court will see that all the respondents to whom the houses were allotted are parties in the proceedings before it, if they are not the High Court will implead them and decide the question as to whether the appellant is entitled to preference over the other respondents. So far as the order of the High Court relating to the first respondent is concerned, it is confirmed. 4. The appellant is granted six months time to give vacant possession to the first respondent. In view of the short time given for vacating the bungalow, the High Court will expedite the matter. 5. The appellant will file an affidavit in this Court within six weeks from today undertaking not to induct any other person in the bungalow or in any way hamper the first respondent taking possession thereof at the expiry of six months time granted.
### Response:
1
### Explanation:
It confirmed the finding of the City Civil Court that the first respondent is entitled to priority over the appellant but the question as to whether the appellant would be entitled to a bungalow in preference to the other respondents was not considered. The question has to be decided by the High Court. The matter is remitted to the High Court. The High Court will see that all the respondents to whom the houses were allotted are parties in the proceedings before it, if they are not the High Court will implead them and decide the question as to whether the appellant is entitled to preference over the other respondents. So far as the order of the High Court relating to the first respondent is concerned, it is confirmed4. The appellant is granted six months time to give vacant possession to the first respondent. In view of the short time given for vacating the bungalow, the High Court will expedite the matter5. The appellant will file an affidavit in this Court within six weeks from today undertaking not to induct any other person in the bungalow or in any way hamper the first respondent taking possession thereof at the expiry of six months time granted.
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NATIONAL AGRICULTURAL COOPERATIVE MARKETING FEDERATION OF INDIA Vs. ALIMENTA S.A | by the court on three copies is, we think, mistaken. Perhaps, the rule requires three copies, and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach that can be characterised as an irregularity to be corrected by condonation on application by the party fulfilling the condition within a time allowed by the court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of Rule 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that suit shall be produced. We further feel that the court should, if it thinks it necessitous, exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite number. In this view and to the extent indicated, we overrule the decision in Bikram Dass s case, AIR 1975 Punj & Har 1 (FB) . 76. Learned counsel also relied on Kailash v. Nankhu & Ors., (2005) 4 SCC 480 , in which the court observed: 28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774 are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands of law troubles a judges conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive. 29. In State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 , the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 , the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. 77. On behalf of the respondent, letter dated 17.11.2011 issued by FOSFA was relied on stating that even though the FOSFA rules are silent on the issue of the first tier Arbitrator acting as a representative of the party in the second tier, i.e., at the appellate stage, the practice prevalent at the relevant time in the UK allowed the same. The FOSFA mentioned in the letter that many parties in cases before FOSFA elected to make such an appointment with the agreement of the individual arbitrator concerned, and this practice was prevalent. 78. The Arbitrator appeared at the appellate stage, though, as per the Indian Law and the ethical standards, the Arbitrator could not have appeared at the second stage to defend arbitration award passed by him, and should have kept aloof. However, no concrete material has been placed on record to substantiate the objection as to prevailing practice and law in U.K. at the relevant time. Hence, we are not inclined to decide the issue in this case. Suffice it to observe that Arbitrator is supposed to follow ethical standards, and, in our considered view, ought not to have defended arbitration award passed by him in the subsequent judicial proceedings. 79. The question was also raised concerning the Board of Appeal, enhancing the rate of interest from 10.5 % to 11.25 %. We hold that it was not open to the Board of Appeal to increase the interest in the absence of appeal. As we have held award to be unenforceable under section 7 of the Foreign Awards Act, other submission does not survive for decision. | 1[ds]Consequently, NAFED could not have been held liable to pay damagesIt is apparent from Clause 14 of the Agreement that during the contract shipment period in the event of the prohibition of export by an executive or legislative act by any of the Government of origin, such restriction shall be deemed by both the parties to apply to the contract. Thus, if the shipment becomes impossible by reasons mentioned in the clause, the agreement shall be cancelled36. It is apparent from the provisions of the contract dated 12.1.1980 that the quantity of 5,000 metric tonnes, to be increased up to 8,000 metric tonnes, depending upon the availability of stocks. Clause 8 of the Agreement dated 12.1.1980 provided that shipment was to be from Saurashtra port at the buyers option during February/March/April 1980. The other terms and conditions were as per FOSFA, 20 contract terms. Addenda dated 18.8.1980 and 6.10.1980 were executed to the agreement/ contract dated 12.1.1980. The NAFED had no authority to enter into export for the previous years without prior permission of the Government of India, and it executed both the addenda without such permission37. The Minutes of Meeting of Business Committee of NAFED, dated 21.11.1980 at Agenda Item No.4, notes that there were unseasonable rains in the Saurashtra region and due to cyclone, etc. the groundnut crop was severely damaged, and there was less production. There was less than 50% recovery. There was an escalation of prices as compared to 1978¬79 in 1979-80. It appears that NAFED intended to perform the contract in the oblivion of the fact that being a canalizing agent, it could not have carried out the supply in the next subsequent years38. The NAFED in the circumstances after receipt of the letter dated 1.12.1980 of the Department of Agriculture informed the Alimenta S.A. not to nominate the vessel for shipment for the goods due to the Governments prohibition for the supply of the goods. The NAFED wrote a letter again on 9.1.1981 and pointed out to the Government that they were unable to export on account of Government order. The Government was asked to apprise it of the final decision regarding the export of commodities to the respondent. Letter dated 27.1.1981 reiterating prohibition came to be issued in the aforesaid circumstances. It was taken to be a refusal to supply on the part of the NAFED by the Alimenta S.A., and they asked the NAFED to appoint its Arbitrator. Alimenta S.A. appointed Mr. A.G. Scott as its nominee Arbitrator. Another telex dated 13.2.1981 was sent by the NAFED informing that it would not be possible to supply the commodity because of Government action of banning such export. Later on, confirmation was sought from the Government by the NAFED. The Ministry of Commerce, Government of India, informed NAFED on 9.1.1984 that the directions issued by the Ministry of Agriculture refusing fulfilment of previous years contract were lawful and bindingIt is apparent that the Government of India issued a direction that was binding upon the NAFED. Without permission, it was not possible for the NAFED to carry out its obligation under the Contract and Addenda43. In the present case, parties have agreed, and in Clause 14 of the Agreement, it was contemplated that during the contract if there is any prohibition of the export or any other executive or legislative Act by or on behalf the Government of the Country of origin, the unfulfilled part of the contract shall be cancelled. Because of the refusal by the Government, it was not permissible to the NAFED to make a supply to the Alimenta S.A. Hence; the unfulfilled part was required to be cancelled. Thus, NAFED was justified in not making the supply as it would have violated the Export Control Order, and it was not permissible to carry forward the quantity of the previous year to the next year because of the Export Control Order without permission of the Government44. It is apparent that the contract came to an end in terms of Clause 14 of the Agreement. The contract became void in view of the provisions contained in Section 32 of the Indian Contract Act, 1881 (for short, Contract Act). The stipulation in Clause 14 releases both parties from the performance of the contract.48. In the present case, because of the clear stipulation in Clause 14 of the Agreement, it is apparent that the parties have agreed for a contingent contract. They knew very well that the Governments executive, or legislative actions might come in the way as provided in Clause 14 of the Agreement. Thus, in this case, section 32 of the Contract Act is attracted and not the provisions of section 56. It was an agreement to do an act impossible in itself without permission, and that is declared to be void by section 32. The contract was capable of being performed in case the Government gave the requisite authorization. It is not an event that was not in contemplation at the time of entering into the agreement. Government permission was necessary. Section 56 is not attracted as the promisor and promisee both knew the reason in advance as in agreement such a contingency was provided itself in case of Governments executive order comes in the way, for cancellation of the contract. Thus, the contract became void on the happening of the contingency, as provided in section 32 of the Contract Act52. In the present case, the High Court observed that it was a case of self-induced frustration. The High Court ignored and overlooked that it was not a case of frustration under section 56 of the Contract Act, but there was a stipulation in Clause 14 of the Agreement, the effect of which was ignored and overlooked, and the said term was based upon the law as applicable in India and was based on export restrictions, it was within the realm of public policy. The NAFED was a canalising agency and could not have supplied without prior permission of Government, nor could it have lawfully carried forward last years supply to next year that too limited quota and to supply Government permission was necessary to make it. Enforcement of such an award in violation of export policy and the Government order would be against the public policy as envisaged in section 7 of the Act of 1961On the happening of such an event, it is so fundamental as to be regarded by law as striking at the root. As such, we are of the opinion that the contract was rendered void in terms of section 32 of the Contract Act57. It would have been unlawful for NAFED to affect the supply in view of the Governments refusal to accord the permission, and both the parties knew it very well and agreed that the contract would be cancelled in such an exigency for non-supply in quantity. Thus, they were bound by the agreement. The award pre¬supposes supply could have been made after the Governments refusal. If supply had been made, it would have been unlawful. Thus, the parties agreed for its cancellation as such an award is against the basic law and public policy as applied in India58. It is also apparent that the Government rightly objected to the supply being made at the rate of the previous season in the next season, particularly when the prices escalated thrice. The addendum was entered into subsequently, unfairly, and the parties fully understood that the Government would not permit export at the rate on which supply was proposed, and NAFED was acting only as a canalising agent of the Government of India. Thus, for such an unfair contract, permission was rightly declined by the Government. In the previous year, the commodity could not be supplied due to force majeure. In no event, supply could have been made in December 1980 and January 1981 sans permission from the Government of India61. The question arises when the award can be said to be contrary to public policy. This Court considered the issue in several decisions. The expression public policy concerning the agreement relates to the public policy of the country where award is being enforced. Section 23 of the Contract Act, 1872 deals with what consideration and objects are lawful and what not. If the court regards it as immoral or opposed to public policy, in that event, the consideration or object of agreement is said to be unlawful, and any agreement of which the object or consideration is unlawful is voidIn the instant case, we are not on the issue of procedural irregularities while considering the aspect above concerning the public policy; we have to consider the case mainly given Clause 14 of the Agreement68. It is apparent from above¬mentioned decisions as to enforceability of foreign awards, Clause 14 of FOSFA Agreement and as per the law applicable in India, no export could have taken place without the permission of the Government, and the NAFED was unable to supply, as it did not have any permission in the season 1980-81 to effect the supply, it required the permission of the Government. The matter is such which pertains to the fundamental policy of India and parties were aware of it, and contracted that in such an exigency as provided in clause 14, the Agreement shall be cancelled for the supply which could not be made. It became void under section 32 of the Contract Act on happening of contingency. Thus, it was not open because of the clear terms of the Arbitration Agreement to saddle the liability upon the NAFED to pay damages as the contract became void. There was no permission to export commodity of the previous year in the next season, and then the Government declined permission to NAFED to supply. Thus, it would be against the fundamental public policy of India to enforce such an award, any supply made then would contravene the public policy of India relating to export for which permission of the Government of India was necessary69. In our considered opinion, the award could not be said to be enforceable, given the provisions contained in Section 7(1)(b)(ii) of the Foreign Awards Act. As per the test laid down in Renusagar (supra), its enforcement would be against the fundamental policy of Indian Law and the basic concept of justice. Thus, we hold that award is unenforceable, and the High Court erred in law in holding otherwise in a perfunctory manner70. Though in view of the finding above, it is not necessary to go into other questions. It was argued that the Arbitrator was appointed in violation of the order passed by the High Court. The High Court on 20.3.1981 granted interim stay till 22.4.1981. A telex dated 20.3.1981 was sent informing that the High Court granted an interim stay. The FOSFA vide letter dated 6.4.1981 asked the NAFED to appoint its arbitrator by 20.4.1981. On 9.4.1981, NAFED informed FOSFA about the stay of the arbitration proceedings granted by the High Court. The interim order was extended on 22.4.1981 till further orders. On 23.4.1981, Mr. F.A.D. Ralfe, a nominee of the NAFED, was appointed as Arbitrator by FOSFA in the Arbitration Tribunal in violation of the order passed by the High Court72. Though this Court passed an interim order, ultimately, it dismissed the petition filed on behalf of the NAFED, and it was open to the appellant to raise the question at the relevant time when this court decided the matter in the year 1987. This court permitted the arbitration proceedings to continue. As such, we are of the opinion that though it would have been proper for the FOSFA to comply with the interim orders passed by this Court, the proceedings in which the temporary orders were given were dismissed way back in the year 1987. At that time, the question was required to be agitated. This Court permitted to continue proceedings in 1987. The said questions ought to have been raised at that stage; we cannot permit the appellant to raise them now. Hence, at this stage, we are not inclined to entertain and examine merits of the argument mentioned above74. It is not disputed that before the Arbitration Tribunal, the rule debars legal representation; hence the submission as to non¬ representation before the Tribunal, cannot be accepted. However, in appeal due to refusal to permit representation through a legal firm, the NAFED was not able to point out the prejudice caused to it. In the absence of proof of prejudice caused due to non¬representation by a Legal Representative and to show that it was disabled to put forth its views, we cannot set aside the award on the ground that it would have been proper to allow the assistance of a Legal Representative. Thus, we are not inclined to render the award unenforceable on the aforesaid ground78. The Arbitrator appeared at the appellate stage, though, as per the Indian Law and the ethical standards, the Arbitrator could not have appeared at the second stage to defend arbitration award passed by him, and should have kept aloof. However, no concrete material has been placed on record to substantiate the objection as to prevailing practice and law in U.K. at the relevant time. Hence, we are not inclined to decide the issue in this case. Suffice it to observe that Arbitrator is supposed to follow ethical standards, and, in our considered view, ought not to have defended arbitration award passed by him in the subsequent judicial proceedings79. The question was also raised concerning the Board of Appeal, enhancing the rate of interest from 10.5 % to 11.25 %. We hold that it was not open to the Board of Appeal to increase the interest in the absence of appeal. As we have held award to be unenforceable under section 7 of the Foreign Awards Act, other submission does not survive for decision. | 1 | 24,501 | 2,536 | ### 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:
by the court on three copies is, we think, mistaken. Perhaps, the rule requires three copies, and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach that can be characterised as an irregularity to be corrected by condonation on application by the party fulfilling the condition within a time allowed by the court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of Rule 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that suit shall be produced. We further feel that the court should, if it thinks it necessitous, exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite number. In this view and to the extent indicated, we overrule the decision in Bikram Dass s case, AIR 1975 Punj & Har 1 (FB) . 76. Learned counsel also relied on Kailash v. Nankhu & Ors., (2005) 4 SCC 480 , in which the court observed: 28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774 are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands of law troubles a judges conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive. 29. In State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 , the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 , the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. 77. On behalf of the respondent, letter dated 17.11.2011 issued by FOSFA was relied on stating that even though the FOSFA rules are silent on the issue of the first tier Arbitrator acting as a representative of the party in the second tier, i.e., at the appellate stage, the practice prevalent at the relevant time in the UK allowed the same. The FOSFA mentioned in the letter that many parties in cases before FOSFA elected to make such an appointment with the agreement of the individual arbitrator concerned, and this practice was prevalent. 78. The Arbitrator appeared at the appellate stage, though, as per the Indian Law and the ethical standards, the Arbitrator could not have appeared at the second stage to defend arbitration award passed by him, and should have kept aloof. However, no concrete material has been placed on record to substantiate the objection as to prevailing practice and law in U.K. at the relevant time. Hence, we are not inclined to decide the issue in this case. Suffice it to observe that Arbitrator is supposed to follow ethical standards, and, in our considered view, ought not to have defended arbitration award passed by him in the subsequent judicial proceedings. 79. The question was also raised concerning the Board of Appeal, enhancing the rate of interest from 10.5 % to 11.25 %. We hold that it was not open to the Board of Appeal to increase the interest in the absence of appeal. As we have held award to be unenforceable under section 7 of the Foreign Awards Act, other submission does not survive for decision.
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from the Government of India61. The question arises when the award can be said to be contrary to public policy. This Court considered the issue in several decisions. The expression public policy concerning the agreement relates to the public policy of the country where award is being enforced. Section 23 of the Contract Act, 1872 deals with what consideration and objects are lawful and what not. If the court regards it as immoral or opposed to public policy, in that event, the consideration or object of agreement is said to be unlawful, and any agreement of which the object or consideration is unlawful is voidIn the instant case, we are not on the issue of procedural irregularities while considering the aspect above concerning the public policy; we have to consider the case mainly given Clause 14 of the Agreement68. It is apparent from above¬mentioned decisions as to enforceability of foreign awards, Clause 14 of FOSFA Agreement and as per the law applicable in India, no export could have taken place without the permission of the Government, and the NAFED was unable to supply, as it did not have any permission in the season 1980-81 to effect the supply, it required the permission of the Government. The matter is such which pertains to the fundamental policy of India and parties were aware of it, and contracted that in such an exigency as provided in clause 14, the Agreement shall be cancelled for the supply which could not be made. It became void under section 32 of the Contract Act on happening of contingency. Thus, it was not open because of the clear terms of the Arbitration Agreement to saddle the liability upon the NAFED to pay damages as the contract became void. There was no permission to export commodity of the previous year in the next season, and then the Government declined permission to NAFED to supply. Thus, it would be against the fundamental public policy of India to enforce such an award, any supply made then would contravene the public policy of India relating to export for which permission of the Government of India was necessary69. In our considered opinion, the award could not be said to be enforceable, given the provisions contained in Section 7(1)(b)(ii) of the Foreign Awards Act. As per the test laid down in Renusagar (supra), its enforcement would be against the fundamental policy of Indian Law and the basic concept of justice. Thus, we hold that award is unenforceable, and the High Court erred in law in holding otherwise in a perfunctory manner70. Though in view of the finding above, it is not necessary to go into other questions. It was argued that the Arbitrator was appointed in violation of the order passed by the High Court. The High Court on 20.3.1981 granted interim stay till 22.4.1981. A telex dated 20.3.1981 was sent informing that the High Court granted an interim stay. The FOSFA vide letter dated 6.4.1981 asked the NAFED to appoint its arbitrator by 20.4.1981. On 9.4.1981, NAFED informed FOSFA about the stay of the arbitration proceedings granted by the High Court. The interim order was extended on 22.4.1981 till further orders. On 23.4.1981, Mr. F.A.D. Ralfe, a nominee of the NAFED, was appointed as Arbitrator by FOSFA in the Arbitration Tribunal in violation of the order passed by the High Court72. Though this Court passed an interim order, ultimately, it dismissed the petition filed on behalf of the NAFED, and it was open to the appellant to raise the question at the relevant time when this court decided the matter in the year 1987. This court permitted the arbitration proceedings to continue. As such, we are of the opinion that though it would have been proper for the FOSFA to comply with the interim orders passed by this Court, the proceedings in which the temporary orders were given were dismissed way back in the year 1987. At that time, the question was required to be agitated. This Court permitted to continue proceedings in 1987. The said questions ought to have been raised at that stage; we cannot permit the appellant to raise them now. Hence, at this stage, we are not inclined to entertain and examine merits of the argument mentioned above74. It is not disputed that before the Arbitration Tribunal, the rule debars legal representation; hence the submission as to non¬ representation before the Tribunal, cannot be accepted. However, in appeal due to refusal to permit representation through a legal firm, the NAFED was not able to point out the prejudice caused to it. In the absence of proof of prejudice caused due to non¬representation by a Legal Representative and to show that it was disabled to put forth its views, we cannot set aside the award on the ground that it would have been proper to allow the assistance of a Legal Representative. Thus, we are not inclined to render the award unenforceable on the aforesaid ground78. The Arbitrator appeared at the appellate stage, though, as per the Indian Law and the ethical standards, the Arbitrator could not have appeared at the second stage to defend arbitration award passed by him, and should have kept aloof. However, no concrete material has been placed on record to substantiate the objection as to prevailing practice and law in U.K. at the relevant time. Hence, we are not inclined to decide the issue in this case. Suffice it to observe that Arbitrator is supposed to follow ethical standards, and, in our considered view, ought not to have defended arbitration award passed by him in the subsequent judicial proceedings79. The question was also raised concerning the Board of Appeal, enhancing the rate of interest from 10.5 % to 11.25 %. We hold that it was not open to the Board of Appeal to increase the interest in the absence of appeal. As we have held award to be unenforceable under section 7 of the Foreign Awards Act, other submission does not survive for decision.
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Associated Biscuit Company Private Limited Vs. S T. L. Nambiar | Court was called upon to consider this question in Shankarlal Aggarwala v. Shankarlal Poddar [1965] 35 Comp Cas 1 (SC), where a sale of property was confirmed by the company court and an appeal was raised disputing the order confirming the sale. An argument was raise that the confirmation of sale was mere administrative order and it was not a judicial order which decided the rights of any party. Negativing this argument, the Supreme Court held that merely because an order is passed in the course of the administration of the assets of the company and for realising those assets, it is not by itself sufficient to make it an administrative order, as distinguishing from a judicial order. The question ultimately depends upon there nature of the order that is passed. According to them, an order granting sanction to sell undoubtedly involved a discretion and it could not be said to be a merely ministerial order. This is particularly so when the confirmation is being opposed on the ground that the sale was not in accordance with the conditions on which the liquidator was permitted to dispose of the assets. Holding that an appeal lies against such an order, the Supreme Court made certain observations as to what constitutes a judicial as against an administrative order. On page 8 of the report, their Lordships observed as follows :"it is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a court is not decisive of the question whether the act or decision is administrative or judicial. But we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the right of parties or confers or refuses to confer rights to property which are the subject of adjudication before the court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of the authority, particularly if that authority were a court, and if the discretion has to be exercised on objective, as distinguished from a purely subjective, consideration, it would be a judicial decision. "( 20 ) THE principle that must be remembered is thus clear. The first question that should be asked in such circumstances is whether the order impugned is judicial order and, if so, does it affect adversely or otherwise the rights of any party. If these queries are raised in the present litigation, we are of the view that the answer to them will be such that the order would become appealable. Undoubtedly, a company has a right to be heard and satisfy the court that a petition for winding up under clause (f) of section 433 be not admitted. In the present case, the respondent is making a number of allegations of mismanagement. The company on the contrary points out that the entire application is mala fide one. The respondent is interested in bringing pressure upon the company and make it pay his own deposit, though, to his own knowledge, he is not entitled to recover it at this stage. These being the rival contentions, a hearing is necessary before the company court admits the petition under section 433 (f ). A petition under clause (e) of section 433 is already admitted and on the merits of the defence either the winding-up order may follow or the court may reject the application. However, without giving an opportunity of being heard if a petition under clause (f) of section 433 has been automatically admitted, by this indirect method of allowing amendment of an admitted petition, it is a serious inroad upon the right of the company and it is deprived of an earlier hearing and an opportunity to satisfy the court that such a petition be not admitted at all. The order of the company judge is clear enough. He has never applied his mind to the question whether the petition with the allegations contained in the proposed amendment should or should not be independently admitted for the purpose of final hearing. He had merely indicated that there may be new grounds and the amendment may make the present petition under clause (e) also a petition under clause (f ). But, according to the learned judge, no prejudice is being caused to the rights of the company. In our view, to admit a petition without hearing the company would itself prejudicially affect the company. ( 21 ) IT may appear in the circumstances of the present case that while hearing the petition under section 433 (e) an advertisement may be necessary unless the company makes an independent application and obtains specific orders thereon not to advertise the petition. If, therefore, and advertisement is already contemplated by the procedure adopted so far, how can the company be adversely affected by adding some more matter to the advertisement. We will point out that an advertisement under clause (e) stands on a different footing than an advertisement under clause (f ). If the persons interested in the company know that a particular loan claimed under a winding-up petition under clause (e) is not payable, they will just ignore the advertisement and may not appear before the company court. However, an advertisement under clause (f) is likely to cause confusion and may not give clear information to the persons interested in the company. Not only the business, but the stability of the company, is likely to be seriously affected by an advertisement of this kind. We are thus of the view that, by allowing the amendment, the right of the company to be heard before the amendment is prejudicially affected. Undoubtedly, that is an order in which judicial considerations had to be given and the learned company judge undoubtedly had the judicial discretion either to accept or to refuse the amendment. | 1[ds]In the matter of winding up, admission of a petition is an important stage. Once the petition for winding up is admitted, the procedure under the rules requires that the judge in chamber will fix up a date for final hearing and before that will also fix a date for the advertisement of the petition. This procedure of advertisement can lead, and many times does lead, to serious consequences affecting the business and the reputation of the company. That being so, admission of a petition is an important stage and the companies are normally heard before apetition is admitted. However, this stage of admission merely requires that the court is satisfied of a prima facie case requiring a detailed enquiry. The hearing for admission may be taken seriously by the parties, but unless satisfied that there is no substance in it, the court may ordinarily admit a petition for final hearing. The procedure that is adopted in the present case is that after the defence were filed, the respondent claimed inspection of records to satisfy himself about the correctness or otherwise of the allegations made in the defences. He wanted to verify whether in fact there was any board meeting on the particular date alleged and whether is was so resolved to accept the loan from SICOM on certain terms and conditions. He also wanted to verify whether in any lawfully held meeting of the board of directors allotment of shares took place as pleaded. Not only a detailed inspection was directed and given but the petition was in the meanwhile directed to be put up for hearing.(11 ) MR. Khanna argued that the record does not indicate that the original petition has been admitted.It is true that there is no specific order admitting the petition, but the procedure adopted and the orders passed from time to time do indicate that without final hearing of the original petition documents were allowed to be inspected and directions for fixing the date of hearing were given from time to time. Having gone through the orders quoted, we are inclined to hold that the record may not be very clear but the stages subsequently followed indicate that the original petition is admitted and is now fixed for final hearing by the company judge. However, in the meanwhile, an amendment application came to be filed and the impugned order became necessary as that application for amendment was being considered in the first instance before final hearing of the original petition. This is not a case, therefore, where the original petition is yet to be admitted, but, in our view, is an admitted petition. Before the final hearing could take place in that petition, an amendment is now sought.a tried his best to tell us that the original petition is a composite petition on grounds contained in section 433 (e) as well as in section 433 (f) of the Companies Act, 1956. He took us through the recitals in the main petition starting with paragraph 12. Undoubtedly, there is some reference to the deliberate ousting of the respondent from the affairs of the company and allegation of some mismanagement thereof. He also says that the company is unable to met the current demand. There is an allegation that some of the annual reports have not been properly prepared and filed. There is some reference to the allegation of the company regarding the allotment of shares also in paragraph16. However, when all these paragraphs are read together along with the two concluding paragraphs 17 and 18, we are satisfied that the petitioner merely wanted to claimorder because of the inability of the company to pay debts which is a separate and distinct cause of action provided by clause (e) of section 433 of the Companies Act. The various clauses of the Companies Act give distinct and different reasons why the compulsory winding up under the orders of the court can be done. There is no doubt that the grounds covered by clauses (e) and (f) could be combined by the petitioner while approaching the company court. However, having read the original petition as a whole, we do not find that the petitioner wanted to invoke the courts jurisdiction for winding up on the basis of what is known as just and equitable cause. If a company is unable to pay debts in the manner contemplated by clause (e) of section 433 and the circumstances mentioned in section 434 of the Companies Act are proved, ordinarily and order for winding up has to follow. That is not the case in the case of clause (f) which deals with the just and equitable circumstances when the court on evidence comes to the conclusion that winding up is in the interest of all concerned. We do not find even a whisper of that approach in the original15 ) WHAT is now the nature of the amendment which is proposed The first important feature which is to be noted from the recitals in the application for amendment is that the entire cause of action described in the added paragraphs proposed by way of amendment has occurred subsequent to the filing of the original petition. Paragraph 3 of the application for amendment says that subsequent to the filing of the present petition, there has been considerable development in the matter in dispute in the present petition. There have been acts of mismanagement, misappropriation of company funds, misfeasance and falsification of the statutory records,etc. , by T. R. Goenka, managing director, with active connivance, abetment and aid of directors, K. C. George and P. R. Maheshwari. After further allegations in the same vein, the paragraph concludes by saying that it was, therefore, necessary in the paragraph of justice to amend the petition for effective and proper adjudication of the dispute involved in the present petition. Thereafter, it is proposed that paragraphs 18 to 67 of the proposed amendment be allowed to be added to the original petition. They contain specific instances of that the petitioner calls misfeasance, malfeasance, misappropriation, falsification of accounts and records, etc. In other words, because of the several misdeeds which have crept into the management of this company, it appears to be now just and equitable that the company be wound up. The allegations in the amendment can fall squarely under clause (f) of section 433 and no other.( 16 ) UNDOUBTEDLY, therefore, entirely new grounds are envisage for the purposes of claiming the assistance of the court in obtainingorder. Should such a petition have been allowed at the stage at which is allowed In that behalf, it appears, the submission of the learned counsel for the appellant requires serious consideration. He says that, so far as the ground under clause (e) is concerned, the appellant has a valid defence and the companys contention was being partly heard when the respondent as original petitioner felt that he may not succeed in obtaining theorder. If the respondent an a directors was party to a contract for obtaining loan on condition that this own deposit is not to be returned until the loan of SICOM is to be repaid, it is a matter for the consideration of the company judge whether the alleged debt has really become due and payable or that the company has a valid defence for not paying the debt though statutory notice has been served. What is being argued is that realising the weakness of the original petition, an amendment application is given at a stage where it is likely to affect very prejudicially the rights of the company. It is this approach which gives a right of appeal and as such it is necessary to rectify the injustice which is being inflicted upon thethe original petition is an admitted petition, the result of the amendment being allowed is to make an application under section 433 (e) as one under section 433 (f) as well and also give it the status of an admitted petition. A fullfledged enquiry after advertisement will be under both the clauses of section 433. Order admitting a petition is itself an appealable order as it seriously affects the right of the company. If that be so, be factual position that develop in the present case is thus. The respondent poses as if he filed separate petition for winding up of the company under section 433 (f) after his first petition was admitted which was only under section 433 (e) of the companies Act. The effect of the present order is that simply because the first petition is admitted, a second petition should automatically be admitted on record. In other words, the companys right to oppose admission and to satisfy the court that the petition may not be admitted at all is lost altogether. An important stage or step in the procedure is got rid of by indirect manner of amending a petition which is already admitted. This is not say that the amendment is not possible in a petition which is already admitted. Since the provisions of Order 6, rule 17, in its principles apply as far as they go to the pleadings before the company court, it could be logical to assume that the amendments would normally be allowed to bring out the real dispute between the parties, but where the amendment transgresses the original dispute and introduces a new cause of action altogether, even if the court has the right to do so, it will be slow to permit such an amendment if it adversely affects the right of the party concerned.(18 ) WHETHER the order allowing amendment is an appealable order by itself was another question raised by Mr. Khanna. According to him, the order of the company judge permitting the amendment is not a "judgment" with the meaning of that expression used in clause 15 of the lettersPatent. It is also not an order prejudicially affecting the right of the company and as such no appeal can lie. The present appeal, it must be pointed out, is one under the provisions of section 483 of the Companies Act. The language of section 483 is much wider than the language of clause 15 of the Letters Patent. Here appeals are provided from any order made or decision given in the matter of winding up of a company. What is required is that there should be decision or an order an or order and it must be in the matter of theof a company. This is not to suppose that any and every order irrespective of its nature is supposed to bethe present case, the respondent is making a number of allegations of mismanagement. The company on the contrary points out that the entire application is mala fide one. The respondent is interested in bringing pressure upon the company and make it pay his own deposit, though, to his own knowledge, he is not entitled to recover it at this stage. These being the rival contentions, a hearing is necessary before the company court admits the petition under section 433 (f ). A petition under clause (e) of section 433 is already admitted and on the merits of the defence either theorder may follow or the court may reject the application. However, without giving an opportunity of being heard if a petition under clause (f) of section 433 has been automatically admitted, by this indirect method of allowing amendment of an admitted petition, it is a serious inroad upon the right of the company and it is deprived of an earlier hearing and an opportunity to satisfy the court that such a petition be not admitted at all. The order of the company judge is clear enough. He has never applied his mind to the question whether the petition with the allegations contained in the proposed amendment should or should not be independently admitted for the purpose of final hearing. He had merely indicated that there may be new grounds and the amendment may make the present petition under clause (e) also a petition under clause (f ). But, according to the learned judge, no prejudice is being caused to the rights of the company. In our view, to admit a petition without hearing the company would itself prejudicially affect the21 ) IT may appear in the circumstances of the present case that while hearing the petition under section 433 (e) an advertisement may be necessary unless the company makes an independent application and obtains specific orders thereon not to advertise the petition. If, therefore, and advertisement is already contemplated by the procedure adopted so far, how can the company be adversely affected by adding some more matter to the advertisement. We will point out that an advertisement under clause (e) stands on a different footing than an advertisement under clause (f ). If the persons interested in the company know that a particular loan claimed under apetition under clause (e) is not payable, they will just ignore the advertisement and may not appear before the company court. However, an advertisement under clause (f) is likely to cause confusion and may not give clear information to the persons interested in the company. Not only the business, but the stability of the company, is likely to be seriously affected by an advertisement of this kind. We are thus of the view that, by allowing the amendment, the right of the company to be heard before the amendment is prejudicially affected. Undoubtedly, that is an order in which judicial considerations had to be given and the learned company judge undoubtedly had the judicial discretion either to accept or to refuse the amendment. The impugned order thus, according to us, falls squarely under the provisions of section 483 of the companies Act and, as such, it is2 ) MR. Khanna for the respondent referred us to the judgment of the Supreme Court in Shanti kumar R. Canji v. Home Insurance Co. of New York [1974] 2 SCC 387. The Supreme Court was considering in that case clause 15 of the Letters Patent, for purposes of finding out whether an order allowing amendment amounted to "judgment" within the meaning of that clause, so as to make the order appealable. We might at once point out that the language of section 483 of the companies Act which is relevant for our purpose being different from the language of clause 15, the decision of the Supreme Court pointing out what is a "judgment" within the meaning of that expression used in clause 15 if the Letters Patent may not be relevant for the present purpose. However, event then the general observations of the Supreme Court may be of some relevance, as the broader principles governing the amendments they would not be much different. Their lordships observed that if an amendment merely allows a plaintiff to state a new cause of action or to ask a new relief or to include a new ground relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Having made these observations so far as the facts of that case are concerned, their lordships at once pointed out that by the impugned amendment before them a claim which wasbecame alive as the amendment relates back to the date of the institution of the original suit. They, therefore, pointed out that the defendant had already obtained invulnerable right of defeating the claim on raising the defence of limitation. Though the court may have power and in a fit case the court may ignore the question of limitation, ordinarily where a valid defence is available and has become invulnerable by passage of time, the court will be slow to allow an amendment because it adversely affects the rights of the party23 ) IF this is the principle on which even under the provisions of Order 6, rule 17, Civil procedure Code, the amendments are allowed or disallowed, in our view the principle will operate with greater force where the mere admission ofleading to advertisement and hearing will have the normal consequence of adversely affecting the suitability of business of a company. We are thus satisfied that the order is undoubtedly appealable and the appeal24 ) EVEN when this question was considered the judgment of the Supreme Court, quoted above, has thus pointed out why the amendments should be allowed and should not be allowed. Here is a case where each clause of section 433 is a distinct cause of action and though there is no prohibition to the combination of clauses (e) and (f), it is open to anyone to file successive and different company petitions. In the present case, and admitted petition is being opposed on merits and the company hopes to point out a valid defence. If the amendment is now to be allowed and the matter is to be heard together, there is likelihood of some prejudice being caused to the company because the matters which are strictly not relevant under clause (e) might affect the psychology of the judge who may be considering the other petition. It would be advisable, therefore, that even if a separate petition could also be filed under clause (f) it may be heard and disposed of on its own merits without mixing up the matter with the earlier petition under clause (e) of section25 ) WE are thus clear that the effect of the order is to admit the petition without giving an opportunity to the company to oppose this admission. This affects a valuable right of the company and introduces an element of prejudice against it. On the contrary, if the respondent were to file a separate petition, he is not affected in any manner whatsoever. There is no prohibition to file separate or successive petitions under different clauses of section 433 since they constitute separate and independent reasons for which the company is to be wound up. It would not be fair in the circumstances of the case to amend the petition by adding the grounds which fall admittedly under clause (f) in a petition which has been originally drafted as one under clause (e ). | 1 | 5,081 | 3,314 | ### Instruction:
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Court was called upon to consider this question in Shankarlal Aggarwala v. Shankarlal Poddar [1965] 35 Comp Cas 1 (SC), where a sale of property was confirmed by the company court and an appeal was raised disputing the order confirming the sale. An argument was raise that the confirmation of sale was mere administrative order and it was not a judicial order which decided the rights of any party. Negativing this argument, the Supreme Court held that merely because an order is passed in the course of the administration of the assets of the company and for realising those assets, it is not by itself sufficient to make it an administrative order, as distinguishing from a judicial order. The question ultimately depends upon there nature of the order that is passed. According to them, an order granting sanction to sell undoubtedly involved a discretion and it could not be said to be a merely ministerial order. This is particularly so when the confirmation is being opposed on the ground that the sale was not in accordance with the conditions on which the liquidator was permitted to dispose of the assets. Holding that an appeal lies against such an order, the Supreme Court made certain observations as to what constitutes a judicial as against an administrative order. On page 8 of the report, their Lordships observed as follows :"it is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a court is not decisive of the question whether the act or decision is administrative or judicial. But we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the right of parties or confers or refuses to confer rights to property which are the subject of adjudication before the court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of the authority, particularly if that authority were a court, and if the discretion has to be exercised on objective, as distinguished from a purely subjective, consideration, it would be a judicial decision. "( 20 ) THE principle that must be remembered is thus clear. The first question that should be asked in such circumstances is whether the order impugned is judicial order and, if so, does it affect adversely or otherwise the rights of any party. If these queries are raised in the present litigation, we are of the view that the answer to them will be such that the order would become appealable. Undoubtedly, a company has a right to be heard and satisfy the court that a petition for winding up under clause (f) of section 433 be not admitted. In the present case, the respondent is making a number of allegations of mismanagement. The company on the contrary points out that the entire application is mala fide one. The respondent is interested in bringing pressure upon the company and make it pay his own deposit, though, to his own knowledge, he is not entitled to recover it at this stage. These being the rival contentions, a hearing is necessary before the company court admits the petition under section 433 (f ). A petition under clause (e) of section 433 is already admitted and on the merits of the defence either the winding-up order may follow or the court may reject the application. However, without giving an opportunity of being heard if a petition under clause (f) of section 433 has been automatically admitted, by this indirect method of allowing amendment of an admitted petition, it is a serious inroad upon the right of the company and it is deprived of an earlier hearing and an opportunity to satisfy the court that such a petition be not admitted at all. The order of the company judge is clear enough. He has never applied his mind to the question whether the petition with the allegations contained in the proposed amendment should or should not be independently admitted for the purpose of final hearing. He had merely indicated that there may be new grounds and the amendment may make the present petition under clause (e) also a petition under clause (f ). But, according to the learned judge, no prejudice is being caused to the rights of the company. In our view, to admit a petition without hearing the company would itself prejudicially affect the company. ( 21 ) IT may appear in the circumstances of the present case that while hearing the petition under section 433 (e) an advertisement may be necessary unless the company makes an independent application and obtains specific orders thereon not to advertise the petition. If, therefore, and advertisement is already contemplated by the procedure adopted so far, how can the company be adversely affected by adding some more matter to the advertisement. We will point out that an advertisement under clause (e) stands on a different footing than an advertisement under clause (f ). If the persons interested in the company know that a particular loan claimed under a winding-up petition under clause (e) is not payable, they will just ignore the advertisement and may not appear before the company court. However, an advertisement under clause (f) is likely to cause confusion and may not give clear information to the persons interested in the company. Not only the business, but the stability of the company, is likely to be seriously affected by an advertisement of this kind. We are thus of the view that, by allowing the amendment, the right of the company to be heard before the amendment is prejudicially affected. Undoubtedly, that is an order in which judicial considerations had to be given and the learned company judge undoubtedly had the judicial discretion either to accept or to refuse the amendment.
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the company would itself prejudicially affect the21 ) IT may appear in the circumstances of the present case that while hearing the petition under section 433 (e) an advertisement may be necessary unless the company makes an independent application and obtains specific orders thereon not to advertise the petition. If, therefore, and advertisement is already contemplated by the procedure adopted so far, how can the company be adversely affected by adding some more matter to the advertisement. We will point out that an advertisement under clause (e) stands on a different footing than an advertisement under clause (f ). If the persons interested in the company know that a particular loan claimed under apetition under clause (e) is not payable, they will just ignore the advertisement and may not appear before the company court. However, an advertisement under clause (f) is likely to cause confusion and may not give clear information to the persons interested in the company. Not only the business, but the stability of the company, is likely to be seriously affected by an advertisement of this kind. We are thus of the view that, by allowing the amendment, the right of the company to be heard before the amendment is prejudicially affected. Undoubtedly, that is an order in which judicial considerations had to be given and the learned company judge undoubtedly had the judicial discretion either to accept or to refuse the amendment. The impugned order thus, according to us, falls squarely under the provisions of section 483 of the companies Act and, as such, it is2 ) MR. Khanna for the respondent referred us to the judgment of the Supreme Court in Shanti kumar R. Canji v. Home Insurance Co. of New York [1974] 2 SCC 387. The Supreme Court was considering in that case clause 15 of the Letters Patent, for purposes of finding out whether an order allowing amendment amounted to "judgment" within the meaning of that clause, so as to make the order appealable. We might at once point out that the language of section 483 of the companies Act which is relevant for our purpose being different from the language of clause 15, the decision of the Supreme Court pointing out what is a "judgment" within the meaning of that expression used in clause 15 if the Letters Patent may not be relevant for the present purpose. However, event then the general observations of the Supreme Court may be of some relevance, as the broader principles governing the amendments they would not be much different. Their lordships observed that if an amendment merely allows a plaintiff to state a new cause of action or to ask a new relief or to include a new ground relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Having made these observations so far as the facts of that case are concerned, their lordships at once pointed out that by the impugned amendment before them a claim which wasbecame alive as the amendment relates back to the date of the institution of the original suit. They, therefore, pointed out that the defendant had already obtained invulnerable right of defeating the claim on raising the defence of limitation. Though the court may have power and in a fit case the court may ignore the question of limitation, ordinarily where a valid defence is available and has become invulnerable by passage of time, the court will be slow to allow an amendment because it adversely affects the rights of the party23 ) IF this is the principle on which even under the provisions of Order 6, rule 17, Civil procedure Code, the amendments are allowed or disallowed, in our view the principle will operate with greater force where the mere admission ofleading to advertisement and hearing will have the normal consequence of adversely affecting the suitability of business of a company. We are thus satisfied that the order is undoubtedly appealable and the appeal24 ) EVEN when this question was considered the judgment of the Supreme Court, quoted above, has thus pointed out why the amendments should be allowed and should not be allowed. Here is a case where each clause of section 433 is a distinct cause of action and though there is no prohibition to the combination of clauses (e) and (f), it is open to anyone to file successive and different company petitions. In the present case, and admitted petition is being opposed on merits and the company hopes to point out a valid defence. If the amendment is now to be allowed and the matter is to be heard together, there is likelihood of some prejudice being caused to the company because the matters which are strictly not relevant under clause (e) might affect the psychology of the judge who may be considering the other petition. It would be advisable, therefore, that even if a separate petition could also be filed under clause (f) it may be heard and disposed of on its own merits without mixing up the matter with the earlier petition under clause (e) of section25 ) WE are thus clear that the effect of the order is to admit the petition without giving an opportunity to the company to oppose this admission. This affects a valuable right of the company and introduces an element of prejudice against it. On the contrary, if the respondent were to file a separate petition, he is not affected in any manner whatsoever. There is no prohibition to file separate or successive petitions under different clauses of section 433 since they constitute separate and independent reasons for which the company is to be wound up. It would not be fair in the circumstances of the case to amend the petition by adding the grounds which fall admittedly under clause (f) in a petition which has been originally drafted as one under clause (e ).
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Ramesh Verma(D) Tr.Lrs Vs. Lajesh Saxena (D) By Lrs | of Section 6 stresses that the Act does not interfere with the special rights of those who are members of Mitakshara property except to the extent that it seeks to ensure the female heirs as specified in Class I of the Schedule, a share in the interest of a coparcener in the event of his death, by introducing the concept of a notional partition immediately before his death. Proviso to Section 6 operates where the deceased has left surviving him, a daughter, or any female as specified in Class I of the Schedule. In the case at hand, Jagan Verma has left the female heirs namely his wife Prabhavati and daughter Lajesh Saxena and, therefore, the devolution of the property of Jagan Verma was governed by the provisions of Hindu Succession Act and the High Court rightly increased the share of Jagan Vermas daughter Lajesh Saxena. 13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. 14. In Savithri v. Karthyayani Amma reported as 2007(4) R.C.R.(Civil) 749 : 2007(6) Recent Apex Judgments (R.A.J.) 35 : (2007) 11 SCC 621 at page 629, this Court has held as under:- A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. 15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the Wills has to be proved in accordance with Section 68 of the Indian Evidence Act. 16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court. 17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court. 18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected. 19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court. | 0[ds]16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court | 0 | 2,135 | 470 | ### Instruction:
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of Section 6 stresses that the Act does not interfere with the special rights of those who are members of Mitakshara property except to the extent that it seeks to ensure the female heirs as specified in Class I of the Schedule, a share in the interest of a coparcener in the event of his death, by introducing the concept of a notional partition immediately before his death. Proviso to Section 6 operates where the deceased has left surviving him, a daughter, or any female as specified in Class I of the Schedule. In the case at hand, Jagan Verma has left the female heirs namely his wife Prabhavati and daughter Lajesh Saxena and, therefore, the devolution of the property of Jagan Verma was governed by the provisions of Hindu Succession Act and the High Court rightly increased the share of Jagan Vermas daughter Lajesh Saxena. 13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. 14. In Savithri v. Karthyayani Amma reported as 2007(4) R.C.R.(Civil) 749 : 2007(6) Recent Apex Judgments (R.A.J.) 35 : (2007) 11 SCC 621 at page 629, this Court has held as under:- A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine. 15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the Wills has to be proved in accordance with Section 68 of the Indian Evidence Act. 16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court. 17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court. 18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected. 19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court.
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16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court
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THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR Vs. THAKUR SHIV RAJ SINGH & ORS | respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.7. That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.? 18. The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.19. The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the following effect: ?7. We have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.8. In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.9. The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.? 20. We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.21. We may also notice that this Court in Municipal Corporation, Rajasthan (supra)although had allowed the appeal but gave liberty to the respondents to take up the issue before the Corporation regarding land use in the Master Plan which was in operation at the relevant time. In paragraph No.14 of the judgment, following has been observed: ?14. The learned Counsel appearing for the respondents, however, submitted that the area in question is notified as commercial area under the Master Plan and, therefore, there is no question of any conversion of the residential property to commercial. We notice that this point was not raised before the High Court and we are, therefore, not called upon to decide that question. However, the Respondents, if so advised, may take up this issue before the Corporation and it is for the Corporation to consider that issue in accordance with law. Appeals are accordingly allowed and the judgments of the High Court are set aside. However, there will be no order as to costs.? 22. In the present case, learned Single Judge has made following observation: ?It is also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.? 23. Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.24. The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan. The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial. | 1[ds]10. The demand for conversion charges having been raised in the present case in the year 2002, the provisions of Section 173-A as amended by Act 19 of 1999 are applicable in the present case. A perusal of unamended and amended Section 173-A indicates that there is substantial change in the statutory provision of Rajasthan Municipalities Act, 1959. Prior to amendment, the power of the State Government to allow the change in the use of land was confined to a land allotted or sold by Municipality or the State Government. The amended Section 173-A has not only changed heading of the Section but contents also. Section 173-A as amended contains restriction on use of land. Both sub-section (1) and sub-section (2) of Section 173-A now contain a restriction on both the categories of land, i.e., (i) originally allotted or sold by the State Government, any Municipality and other local authority or any other body or legal authority; (ii) in the case of any land not allotted or sold and not covered under sub- section (1). The restriction is that no person shall use or permit the use of any such land situated in a municipal area other than that for which such land use was or is permissible, in accordance with the Master Plan, wherever it is in operation. The amended provision of Section 173-Ahas been brought on the Statute book to ensure planned development of a municipal area. Master Plans are to be prepared according to the statutory Scheme keeping in view the future developments of the city and the municipal area. A clear distinction between the statutory Scheme under Section 173-A, unamended and amended, is visible. Earlier the restriction was there only with regard to land, which has been allotted or sold to any person by a Municipality or the State that too restriction for land use for any other purpose other than the purpose for which it was originally allotted or sold. After the amendment restriction is with regard to the land use as provided in Master Plan. Even if prior to amendment in Section 173-A, a person holding the land which was neither allotted nor sold to it by Municipality or State could have used the land for any purpose, the restriction has now been placed by amended Section 173-A. In the facts of the present case, even though prior to amendment of Section 173-A the respondents were using the land for commercial purposes that user is prohibited by virtue of restriction brought by amended Section 173-A(2) for using the land for a purpose other than one which is permitted under Master Plan, permission of State or any authority authorised by it, is required as provided by sub-section (3) of Section 173-A.We need to notice the land use as permissible in the Master Plan, which was in operation at therelevant time when respondents submitted an application for sanction of building plan for commercial-cum-residential complex.We may also notice one of the submissions vehemently raised by the learned counsel for the respondents that the respondents were forced to deposit the conversion charges, which they deposited under the protest. The copy of the writ petition filed by the respondents has been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7, following has been pleaded by theThat the petitioners intended to get the aforesaid plot of land admeasuring 10067.14 sq.yards which is equivalent to 8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In this connection, on having been asked to apply with them for land use conversion as a condition precedent so that maps of building plans can be approved for constructing commercial- cum-residential complex.That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the followingWe have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.In the present case, learned Single Judge has made followingis also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial. | 1 | 5,386 | 1,579 | ### 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:
respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.7. That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.? 18. The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.19. The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the following effect: ?7. We have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.8. In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.9. The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.? 20. We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.21. We may also notice that this Court in Municipal Corporation, Rajasthan (supra)although had allowed the appeal but gave liberty to the respondents to take up the issue before the Corporation regarding land use in the Master Plan which was in operation at the relevant time. In paragraph No.14 of the judgment, following has been observed: ?14. The learned Counsel appearing for the respondents, however, submitted that the area in question is notified as commercial area under the Master Plan and, therefore, there is no question of any conversion of the residential property to commercial. We notice that this point was not raised before the High Court and we are, therefore, not called upon to decide that question. However, the Respondents, if so advised, may take up this issue before the Corporation and it is for the Corporation to consider that issue in accordance with law. Appeals are accordingly allowed and the judgments of the High Court are set aside. However, there will be no order as to costs.? 22. In the present case, learned Single Judge has made following observation: ?It is also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.? 23. Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.24. The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan. The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial.
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in the Master Plan, which was in operation at therelevant time when respondents submitted an application for sanction of building plan for commercial-cum-residential complex.We may also notice one of the submissions vehemently raised by the learned counsel for the respondents that the respondents were forced to deposit the conversion charges, which they deposited under the protest. The copy of the writ petition filed by the respondents has been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7, following has been pleaded by theThat the petitioners intended to get the aforesaid plot of land admeasuring 10067.14 sq.yards which is equivalent to 8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In this connection, on having been asked to apply with them for land use conversion as a condition precedent so that maps of building plans can be approved for constructing commercial- cum-residential complex.That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the followingWe have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.In the present case, learned Single Judge has made followingis also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial.
|
M/S. TVS MOTOR COMPANY LTD Vs. THE STATE OF TAMIL NADU AND OTHERS | very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and sub- section (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax. 42. The reasoning given in that judgment while upholding sub-section (20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory. 43. It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context sub-section (5) of Section 19 is to be analysed. Sub- section (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of this sub-section which provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter-State trade or commerce falling under sub- section (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision. 44. In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either. 45. One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax. 46. Section 2(15) defines the term ‘dealer? and includes State Government as well by means of Explanation II which reads as under: ?Explanation II: The Central Government or any State Government which, whether or not in the course of business, buy, sell, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act.? 47. Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under sub-section (8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer. 48. Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria. | 1[ds]30. While entertaining question no. (2), namely, whether the impugned provisions are violative of Articles 14, 19(1)(g) and 301 of the Constitution, the High Court pointed out that on this aspect, argument of the assessees was that the words ‘rate applicable? employed in Section 8(2) of the CST Act has to necessarily take into account the effective rate after considering the deductions made under Section 3(3) of the TNVAT Act. It was argued that Section 19(5)(c) of the TNVAT Act, which denied ITC on purchase of goods sold or used in the manufacture of other goods and falls within Section 8(2) of the CST is per se discriminatory. The High Court took note of the scheme of TNVAT Act and found that though Section 3(2) stipulated many taxable transactions, only few such transactions are carved out to give benefit of ITC. After discussing certain judgments of this Court and other High Courts, the High Court has observed that the legal position was that right to claim ITC is not a vested right or an indefeasible right. It is a benefit conferred under the Act in certain contingencies and subject to conditions prescribed in the statutory scheme. Therefore, it is open to the State Legislature to provide for conditions and restrictions while extending the concession. Likewise, it was also necessary for any assessee to claim input credit to fulfill those conditions. Thus, the provision made in the statute that unregistered dealers in other States would not be entitled to ITC was justified. The High Court noted that specific stand of the State Government was that in respect of such unregistered dealers in other states, the State of Tamil Nadu had no mechanism to prevent evasion of tax and loss of revenue caused by trade with such unregistered dealers in the State of Tamil Nadu. This kind of evasion, in the opinion of the High Court, was not violative of the constitutional provisions contained in Articles 14, 19(1)(g) and 301.His second submission was that Section 19(5)(c) and Rule 10(9) (c) were violative of Article 14 of the Constitution as there was no rational nexus with the objective sought to be achieved. He reiterated that when the purpose behind such a provision is only to check evasion, and there was no such apprehension in the case of sales to State Government, benefit of ITC could not be denied wherever dealers were making sales to the Government. He further argued that when benefit of ITC is given even when sales are made outside the State but to a registered dealer, then why it should not be accorded on sales that are made to the Government as well as by treating the sales to outside State Government at par with the sales to the registered dealers.It was sought to be justified on the ground that insofar as the State Government is concerned, though it is treated as a dealer, no registration is required since the State Governments are not obliged to get themselves registered under the TNVAT Act. The only problem was that because of this the State Government is not in a position to give ‘C? form. ITC to the appellant was denied only for not furnishing ‘C? form.Insofar as argument of the appellant predicated on Article 14 is concerned, reply of the learned Advocate General was that a reading of Section 8(1) of the CST Act would show that classification is contained in the Central Act itself which treats sale to a registered dealer outside the State in one category and sale to an unregistered dealer outside the State in a different category. This provision contained in Section 8(1) of the CST Act never underwent any change. Therefore, those sales which were made to unregistered dealers outside the State were constituted a different class and, thus, provisions contained in Section 19(5) (c) to deny ITC on such sales was perfectly justified based on reasonable classification.After considering the respective submissions and going through the case law that is presented before this Court, it would be apt to remark at the outset that most of the contentions of the appellants stand answered by the judgment of this Court in Jayam and Company. That case also pertains to the TNVAT Act. The issue was as to whether(20) of Section 19 of the TNVAT Act, which was brought into this statute by Amendment Act 22 of 2013, could be given retrospective effect.It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and subsection (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax.The reasoning given in that judgment while upholding(20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory.It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context(5) of Section 19 is to be analysed. Subsection (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of thiswhich provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course oftrade or commerce falling undersection (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision.In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either.One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax.Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under(8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer.Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria. | 1 | 14,777 | 1,854 | ### 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:
very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and sub- section (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax. 42. The reasoning given in that judgment while upholding sub-section (20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory. 43. It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context sub-section (5) of Section 19 is to be analysed. Sub- section (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of this sub-section which provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter-State trade or commerce falling under sub- section (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision. 44. In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either. 45. One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax. 46. Section 2(15) defines the term ‘dealer? and includes State Government as well by means of Explanation II which reads as under: ?Explanation II: The Central Government or any State Government which, whether or not in the course of business, buy, sell, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act.? 47. Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under sub-section (8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer. 48. Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria.
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contained in Section 19(5) (c) to deny ITC on such sales was perfectly justified based on reasonable classification.After considering the respective submissions and going through the case law that is presented before this Court, it would be apt to remark at the outset that most of the contentions of the appellants stand answered by the judgment of this Court in Jayam and Company. That case also pertains to the TNVAT Act. The issue was as to whether(20) of Section 19 of the TNVAT Act, which was brought into this statute by Amendment Act 22 of 2013, could be given retrospective effect.It is very clear from the aforesaid discussion that this Court held that ITC is a form of concession which is provided by the Act; it cannot be claimed as a matter of right but only in terms of the provisions of the statute; therefore, the conditions mentioned in the aforesaid Section had to be fulfilled by the dealer; and subsection (20) of Section 19 was constitutionally valid. It was also noted, in the process, that there were valid and cogent reasons for inserting that provision and the main purpose was to protect the Revenue against clandestine transaction resulting in invasion of tax.The reasoning given in that judgment while upholding(20) of Section 19 shall equally apply while examining the validity of Section 19(5)(c) thereof. The High Court has noted the specific stand taken by the State Government to the fact that in respect of unregistered dealer in other States, the State of Tamil Nadu has no mechanism to prevent invasion of tax and loss of revenue cost by trade with such unregistered dealers in the State of Tamil Nadu. Therefore, the provision was aimed at achieving a specific and justified purpose and could not be treated as discriminatory.It is stated at the cost of repetition that Section 19 of TNVAT Act deals with ITC. It incorporates provision for grant of ITC under certain circumstances and, at the same time, also lays down the conditions in which such ITC would be admissible. It is in this context(5) of Section 19 is to be analysed. Subsection (5) stipulates certain contingencies where such ITC would not be admissible. There is no quarrel about clauses (a) and (b). We are only concerned with clause (c) of thiswhich provides that ITC would not be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course oftrade or commerce falling undersection (2) of Section 8 of the Central Sales Tax Act. To put it tersely, sale by a dealer who is registered in the State of Tamil Nadu which is effected outside the State of Tamil Nadu will qualify for ITC only when the said sale is made to a registered dealer. If it is to an unregistered dealer, it would not be admissible. This classification is based on intelligible differentia having a proper rationale. Insofar sales to unregistered dealers are concerned, that too situated outside the State of Tamil Nadu, the State would not have any mechanism to find out the genuineness of these sales. In essence, the State is putting the condition that ITC would be admissible when Form ‘C? is given, which can be given only in those cases where sale is to a registered dealer. Prescribing such a condition in order to ensure that there is no evasion, has a rationale purpose and objective. Consideration of this aspect in the context of the very nature of the ITC scheme, which is a concession and not a right, would lead us to the conclusion that it was open to the Legislature to make such a provision.In view of the aforesaid discussion, we do not find any merit in the contentions raised by Mr. Giri. The judgments cited by him would have no application either.One argument of Mr. Bagaria, however, needs little deeper consideration. He has argued that the appellant represented in his case is making sales only to the State of Karnataka. In such a case, there cannot be any apprehension about evasion of tax.Thus, wherever the State Government buys, sells, supplies or distribute goods, it shall be deemed to be the dealer for the purposes of TNVAT Act. At the same time, TNVAT Act does not require registration by the State Government inasmuch as Section 38 which deals with registration of dealers explicitly provides, under(8) thereof, that this provision shall not apply to any State Government or Central Government. A conjoint reading of the aforesaid two provisions would show that when a sale is made to the State of Karnataka, it is made to a dealer but that dealer is under no obligation to get itself registered under the TNVAT Act. Because of this exemption, no State Government does that and since it is not a registered dealer, it would not be in a position to issue any Form C. But for that, the genuineness of sales made to a State Government cannot be doubted. This situation puts those dealers who are making sales to the State Government in disadvantageous position, even when it is clear that there is no possibility of tax evasion as there cannot be any such apprehension in case of sales to the State Government. We may point out here that benefit of ITC is given whenever sale is made to a dealer outside State of Tamil Nadu and the said dealer is a registered dealer.Having regard to the above, we are of the opinion that the provisions of Section 19(5)(c) are to be read down by construing that those dealers who are making sales exclusively to the other State Governments (i.e. outside the State of Tamil Nadu), the said States would be deemed as registered dealers for the purposes of availing benefits of ITC. Otherwise, in such asituation, it would be difficult to hold that test of reasonable classification is met in this limited context. It becomes unnecessary to deal with other contentions of Mr. Bagaria.
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Bihar State Board Of Hindu Religious Trusts Vs. Bhubneshwar Prasad Choudhary & Anr | affairs of the temple and the trust properties, and that there was nothing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc., does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it."8. We find ourselves unable to agree with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar, 1956 SCR 756 = (AIR 1957 SC 133 ). In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its properties, and of those, two were not the relations of the testator. The committee "may appoint the testators nephew as Mutawalli by their unanimous opinion." The documents in the present case are only slightly different in that they provide for the members of the family being shebaits. But the panches are all outsiders. In 1956 SCR 756 = (AIR 1957 SC 133 ) this Court referred to certain facts as indicating that the endowment is to the public :"Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, (1875) 15 Beng LR 167,186, it is a factor to be taken into account in deciding whether an endowment is private or public whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time."In the present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dismissal of pujaris. Though there is no evidence in this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and control by a body of outsiders, who were given the power to remove the shebait if he did not act properly, it is decisive of the question as to the public character of the temple. There could be no better indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause (g) of Section 2 of the Act. The fact that this provision regarding the panches was to come into effect only after the death of the executants of the deed, does not affect the merits of the question. We are also of opinion that the learned Judges of the High Court were not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc., was of no significance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 for this purpose. In that case the properties were granted not in favour of an idol or temple but in favour of a private individual, who was maintaining a temple, and his heirs. The contention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this contention that was repelled by the Privy Council by observing that as the grant was initially to an invidiual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was not made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in 1956 SCR 756 = (AIR 1957 SC 133 ), the endowment is in favour of the idol itself and in such circumstance proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das, AIR 1943 Pat 135 that "a mere provision for the service of sadhus, occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purpose" must be understood in the back-ground of that case where the properties originally stood, in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift was to the mahant personally. | 1[ds]Be that as it may, we are of opinion that the main point regarding all these documents is the fact that the executants had completely divested themselves of any title to or interest in the dedicated properties which thereby became the properties of the deity. The only power which the members of the family thereafter had was to be shebaits and managers of the temple.6. The Subordinate Judge who tried this suit considered that the 1921 document created a trust in which the public were interested. But in this to some extent he seems to have been influenced by a wrong reading of Section 2 (g)(i) of the Act, especially the words "to participate in any religious or charitable ministration under such trust." He mistook the word ministration to be administration. The difference between the words would make all the difference as to whether any member of the public could be said to be interested in the religious trust. We have called for and perused the copy of the Act as printed in the official publication and we find that the word used in ministration and not administration. The question for decision in this case, therefore, has to be decided on the grounds other than the supposed presence of the word administration in Section 2 (g)(i).7. The learned Judges of the High Court on the other hand took the view that the mere fact that the temple was situated within independent compound walls, though near the house of the founders, could not by itself indicate that the temple was meant for public purposes. They further took the view that "the cost over faqirs, sadhus and the occasional festivals would be ancillary to the main purpose, that it, for puja of the deity." As regards the panches mentioned in the documents they were of opinion that they had no opportunity to function or take any part in the affairs of the temple and the trust properties, and that there was nothing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc., does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it."8. We find ourselves unable to agree with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar, 1956 SCR 756 = (AIR 1957 SC 133 ). In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its properties, and of those, two were not the relations of the testator. The committee "may appoint the testators nephew as Mutawalli by their unanimous opinion." The documents in the present case are only slightly different in that they provide for the members of the family being shebaits. But the panches are all outsiders. In 1956 SCR 756 = (AIR 1957 SC 133 ) this Court referred to certain facts as indicating that the endowment is to the publicthere is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, (1875) 15 Beng LR 167,186, it is a factor to be taken into account in deciding whether an endowment is private or public whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time tothe present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dismissal of pujaris. Though there is no evidence in this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and control by a body of outsiders, who were given the power to remove the shebait if he did not act properly, it is decisive of the question as to the public character of the temple. There could be no better indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause (g) of Section 2 of the Act. The fact that this provision regarding the panches was to come into effect only after the death of the executants of the deed, does not affect the merits of the question. We are also of opinion that the learned Judges of the High Court were not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc., was of no significance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 for this purpose. In that case the properties were granted not in favour of an idol or temple but in favour of a private individual, who was maintaining a temple, and his heirs. The contention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this contention that was repelled by the Privy Council by observing that as the grant was initially to an invidiual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was not made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in 1956 SCR 756 = (AIR 1957 SC 133 ), the endowment is in favour of the idol itself and in such circumstance proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das, AIR 1943 Pat 135 that "a mere provision for the service of sadhus, occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purpose" must be understood in theof that case where the properties originally stood, in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift was to the mahant personally. | 1 | 2,212 | 1,419 | ### 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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affairs of the temple and the trust properties, and that there was nothing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc., does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it."8. We find ourselves unable to agree with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar, 1956 SCR 756 = (AIR 1957 SC 133 ). In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its properties, and of those, two were not the relations of the testator. The committee "may appoint the testators nephew as Mutawalli by their unanimous opinion." The documents in the present case are only slightly different in that they provide for the members of the family being shebaits. But the panches are all outsiders. In 1956 SCR 756 = (AIR 1957 SC 133 ) this Court referred to certain facts as indicating that the endowment is to the public :"Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, (1875) 15 Beng LR 167,186, it is a factor to be taken into account in deciding whether an endowment is private or public whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time."In the present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dismissal of pujaris. Though there is no evidence in this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and control by a body of outsiders, who were given the power to remove the shebait if he did not act properly, it is decisive of the question as to the public character of the temple. There could be no better indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause (g) of Section 2 of the Act. The fact that this provision regarding the panches was to come into effect only after the death of the executants of the deed, does not affect the merits of the question. We are also of opinion that the learned Judges of the High Court were not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc., was of no significance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 for this purpose. In that case the properties were granted not in favour of an idol or temple but in favour of a private individual, who was maintaining a temple, and his heirs. The contention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this contention that was repelled by the Privy Council by observing that as the grant was initially to an invidiual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was not made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in 1956 SCR 756 = (AIR 1957 SC 133 ), the endowment is in favour of the idol itself and in such circumstance proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das, AIR 1943 Pat 135 that "a mere provision for the service of sadhus, occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purpose" must be understood in the back-ground of that case where the properties originally stood, in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift was to the mahant personally.
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properties, and that there was nothing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that "the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc., does not justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some considerable portion of it."8. We find ourselves unable to agree with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar, 1956 SCR 756 = (AIR 1957 SC 133 ). In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its properties, and of those, two were not the relations of the testator. The committee "may appoint the testators nephew as Mutawalli by their unanimous opinion." The documents in the present case are only slightly different in that they provide for the members of the family being shebaits. But the panches are all outsiders. In 1956 SCR 756 = (AIR 1957 SC 133 ) this Court referred to certain facts as indicating that the endowment is to the publicthere is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, (1875) 15 Beng LR 167,186, it is a factor to be taken into account in deciding whether an endowment is private or public whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time tothe present case the first factor is present. There is no evidence about the second. There is also provision for appointment and dismissal of pujaris. Though there is no evidence in this case, as in that case, that the temple was built at the request of the public we do not think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and control by a body of outsiders, who were given the power to remove the shebait if he did not act properly, it is decisive of the question as to the public character of the temple. There could be no better indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause (g) of Section 2 of the Act. The fact that this provision regarding the panches was to come into effect only after the death of the executants of the deed, does not affect the merits of the question. We are also of opinion that the learned Judges of the High Court were not correct in their view that the fact that members of the public took part in the worship in the temple and the provision for faqirs etc., was of no significance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Gir Har Saroop, AIR 1940 PC 7 for this purpose. In that case the properties were granted not in favour of an idol or temple but in favour of a private individual, who was maintaining a temple, and his heirs. The contention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this contention that was repelled by the Privy Council by observing that as the grant was initially to an invidiual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was not made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in 1956 SCR 756 = (AIR 1957 SC 133 ), the endowment is in favour of the idol itself and in such circumstance proof of user by the public without interference would be cogent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das, AIR 1943 Pat 135 that "a mere provision for the service of sadhus, occasional guests and wayfarers in a dedication to an idol does not render the dedication substantially for public purpose" must be understood in theof that case where the properties originally stood, in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift was to the mahant personally.
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New India Assurance Company Limited Vs. Mandar Madhav Tambe and Others | that Jaysing Jadhav could not be the driver for the purpose of the policy. But the proviso does not halt there. It adds an independent clause after employing the disjunction or. If the clause after the disjunction or is taken note of, it permits a person who had held a permanent driving licence and who was not disqualified to be a driver of the vehicle. In other words, a person once duly licensed and not disqualified is not excluded from being a driver of the vehicle. ( 13 ) UNDOUBTEDLY, Mr. Trivedi relied on the words of this part so as to contend that such a person must be the holder of a permanent driving licence other than a learners licence, but as we have seen, the category of licences does admit the holder of a permanent driving licence and statutes like the provisions of section 96 (2) (b) (ii) of the Act use the phrase duly licensed that includes even the holder of a learners licence. The intention of the latter clause in the provise of the policy, with which we are concerned, is obvious, in that if the person had held a licence or as such was duly licensed and is not disqualified from holding such a licence, then he could be the driver of the vehicle. If this intention is discernible in the second part of the proviso, then on the facts available in the present case, it can be said that the driver of the vehicle had held a learners licence and was not disqualified from holding such a licence. Such a driver was consequently not excluded by the terms of the policy. What appears to us obvious from the terms of the latter clause of the proviso is that the emphasis is on the holder of the licence who is not disqualified to hold such a licence. This intent is inferable because the first part of the proviso deals with the holder of the licence as such which would include the holder of a learners licence. The second part can be read reasonably so as to include those classes of cases where the licence was not actually in force and was not held but was once held and there was no disqualification from holding such a licence. No doubt, there is much force in the submissions of Mr. Trivedi that this part of the proviso refers to a permanent driving licence and excludes a learners licence for the purpose of capacity along with the want of disqualification. But, as we have indicated, to so read the clauses would be reading something which is not in existence in law, in that a permanent driving licence and to exclude the licensing process as not covered by the learners licence. Furthermore, if for the first part the learners licence could be the part of the licensing, we fail to see how it would not form part of the latter clause. In the light of the provisions of section 96 (2) (b) (ii) of the Act, it is consistent to read the disjunctive part as intending and operating upon the disqualification of drivers who had once been duly licensed. The driving of a vehicle by such a person, we think, who has duly licensed and who was not disqualified is not at any rate clearly excepted by Clause (3) (b) of the General Exceptions available in the policy. ( 14 ) AS we have indicated above, Jaysing Jadhav did hold a licence in 1977 and immediately after the accident within a few days was given a regular income. There is no evidence of his disqualification to hold such a licence. Therefore, he would be in the permissive category of the drivers and as such not excepted by the conditions of the policy. At any rate, we feel by use of the words a permanent driving licence (other than a learners licence) and is not disqualified from holding such a licence, an ambiguity is introduced by the latter part of the proviso, the advantage of which cannot be taken by the Insurance Company while setting up the statutory defence under section 96 (2) (b) (ii) of the Act. The burden to establish the limited defence in law is on the Insurance Company and it has to satisfactorily and beyond ambiguity establish that there had been a breach of the specified condition of the policy which imposes the condition excluding driving by the persons of the kind mentioned by section 96 (2) (b) (ii) of the Act. Here we find, by reason of the latter part, that person who once held a licence and are not disqualified are permitted to be the drivers. If they are so permitted, the exclusion contemplated by sub-clause (ii) cannot be easily read. If there be ambiguity, the defence of the kind taken by the Insurance Company would not be upheld. ( 15 ) GENERALLY stated, such clause of the policy should receive the interpretation consistent with the intent of the parties to the contract and also to further the objects of the statute. This should particularly be so when contracts are in printed form and issued in usual course. If we were to go by the terms of section 96 (2) (b) (ii) of the Act, the exclusion could be of the persons who are not duly licensed or of the persons who had been disqualified, as is mentioned therein. To be within it, the terms of the policy should be specific. The terms of the present proviso are differently worded; and, possibly, do admit a position that the drivers who were once licensed and are not disqualified are not specifically excluded. We would prefer to interpret such a term in the policy document in the light of the purposes of the statute which makes a provision for indemnifying causes involving third parties in accidents and for satisfaction of claims arising therefrom in favour of the party affected rather than to absolve the insurance indemnity. | 1[ds]( 9 ) IF this be the position with regard to the learners licence, we do not think that it will be appropriate to treat the holder of a learners licence as not duly licensed for the purpose ofe (ii) of Clause (b) ofn (2) of section 96 of the Act on which reliance is placed. It will be in keeping with the purposes of that section to give the words duly licensed their ordinary and normal meaning, particularly when the law itself has not excluded the licence of a learner from the category of licences. We are inclined thus to hold that the term duly licensed would include a holder of a learners licence. No good reason exists to limit the phrase to the holder of regular licence( 10 ) IN this, we are in respectful agreement with the view expressed in the Tilak Rams case (supra) by the Himachal Pradesh High Court. The other decisions cited at the Bar are distinguishable on their own facts. It is ample to observe that we are mainly concerned with the terms of the policy at Exh. 159 so as to find out whether it successfully excludes driving by a person as is contemplated by the provisions of section 96 (2) (b) (ii) of the Act. In other words, if the driving is permitted by a person who once held that licence and was not disqualified, there would be no exclusion as is contemplated by the provisions of that clause.( 11 ) HAVING settled this position, we have to turn to the proviso in the policy for finding out exclusion and on which Mr. Trivedi heavily relies. This proviso, added below the column concerning as to who could be the driver of a vehicle, is of qualifying character. It is not in the nature of general exception. In other words, it is, in fact, a definitive provision. Provisos of such kind are intended to lay down the conditions or qualifications which will operate on the subject already mentioned. Any person who would satisfy either of the conditions of the proviso would be the Driver in terms of this policy. Being a part of the policy and which is to be read in the light and context of the provisions of section 96 (2) (b) (ii) of the Act, effort should be to find out as to whether the exclusion of a driver who had held a licence and was thus duly licensed and was not disqualified has or has not been excluded.( 12 ) NOW, as far as the first part of the proviso is concerned, undoubtedly, it does not admit any debate that the exclusion is clearly set out and is also made out, in that a person who was holding no valid driving licence at the time of the accident would not be in the contemplation of the policy to be a driver. In such a case, exclusion would be complete. Had the matter stood at this first part along with the general exceptions extracted above, then the answer would be clear that Jaysing Jadhav could not be the driver for the purpose of the policy. But the proviso does not halt there. It adds an independent clause after employing the disjunction or. If the clause after the disjunction or is taken note of, it permits a person who had held a permanent driving licence and who was not disqualified to be a driver of the vehicle. In other words, a person once duly licensed and not disqualified is not excluded from being a driver of the vehicle( 13 ) UNDOUBTEDLY, Mr. Trivedi relied on the words of this part so as to contend that such a person must be the holder of a permanent driving licence other than a learners licence, but as we have seen, the category of licences does admit the holder of a permanent driving licence and statutes like the provisions of section 96 (2) (b) (ii) of the Act use the phrase duly licensed that includes even the holder of a learners licence. The intention of the latter clause in the provise of the policy, with which we are concerned, is obvious, in that if the person had held a licence or as such was duly licensed and is not disqualified from holding such a licence, then he could be the driver of the vehicle. If this intention is discernible in the second part of the proviso, then on the facts available in the present case, it can be said that the driver of the vehicle had held a learners licence and was not disqualified from holding such a licence. Such a driver was consequently not excluded by the terms of the policy. What appears to us obvious from the terms of the latter clause of the proviso is that the emphasis is on the holder of the licence who is not disqualified to hold such a licence. This intent is inferable because the first part of the proviso deals with the holder of the licence as such which would include the holder of a learners licence. The second part can be read reasonably so as to include those classes of cases where the licence was not actually in force and was not held but was once held and there was no disqualification from holding such a licence. No doubt, there is much force in the submissions of Mr. Trivedi that this part of the proviso refers to a permanent driving licence and excludes a learners licence for the purpose of capacity along with the want of disqualification. But, as we have indicated, to so read the clauses would be reading something which is not in existence in law, in that a permanent driving licence and to exclude the licensing process as not covered by the learners licence. Furthermore, if for the first part the learners licence could be the part of the licensing, we fail to see how it would not form part of the latter clause. In the light of the provisions of section 96 (2) (b) (ii) of the Act, it is consistent to read the disjunctive part as intending and operating upon the disqualification of drivers who had once been duly licensed. The driving of a vehicle by such a person, we think, who has duly licensed and who was not disqualified is not at any rate clearly excepted by Clause (3) (b) of the General Exceptions available in the policy.( 14 ) AS we have indicated above, Jaysing Jadhav did hold a licence in 1977 and immediately after the accident within a few days was given a regular income. There is no evidence of his disqualification to hold such a licence. Therefore, he would be in the permissive category of the drivers and as such not excepted by the conditions of the policy. At any rate, we feel by use of the words a permanent driving licence (other than a learners licence) and is not disqualified from holding such a licence, an ambiguity is introduced by the latter part of the proviso, the advantage of which cannot be taken by the Insurance Company while setting up the statutory defence under section 96 (2) (b) (ii) of the Act. The burden to establish the limited defence in law is on the Insurance Company and it has to satisfactorily and beyond ambiguity establish that there had been a breach of the specified condition of the policy which imposes the condition excluding driving by the persons of the kind mentioned by section 96 (2) (b) (ii) of the Act. Here we find, by reason of the latter part, that person who once held a licence and are not disqualified are permitted to be the drivers. If they are so permitted, the exclusion contemplated bye (ii) cannot be easily read. If there be ambiguity, the defence of the kind taken by the Insurance Company would not be upheld.( 15 ) GENERALLY stated, such clause of the policy should receive the interpretation consistent with the intent of the parties to the contract and also to further the objects of the statute. This should particularly be so when contracts are in printed form and issued in usual course. If we were to go by the terms of section 96 (2) (b) (ii) of the Act, the exclusion could be of the persons who are not duly licensed or of the persons who had been disqualified, as is mentioned therein. To be within it, the terms of the policy should be specific. The terms of the present proviso are differently worded; and, possibly, do admit a position that the drivers who were once licensed and are not disqualified are not specifically excluded. We would prefer to interpret such a term in the policy document in the light of the purposes of the statute which makes a provision for indemnifying causes involving third parties in accidents and for satisfaction of claims arising therefrom in favour of the party affected rather than to absolve the insurance indemnity. | 1 | 3,393 | 1,679 | ### 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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that Jaysing Jadhav could not be the driver for the purpose of the policy. But the proviso does not halt there. It adds an independent clause after employing the disjunction or. If the clause after the disjunction or is taken note of, it permits a person who had held a permanent driving licence and who was not disqualified to be a driver of the vehicle. In other words, a person once duly licensed and not disqualified is not excluded from being a driver of the vehicle. ( 13 ) UNDOUBTEDLY, Mr. Trivedi relied on the words of this part so as to contend that such a person must be the holder of a permanent driving licence other than a learners licence, but as we have seen, the category of licences does admit the holder of a permanent driving licence and statutes like the provisions of section 96 (2) (b) (ii) of the Act use the phrase duly licensed that includes even the holder of a learners licence. The intention of the latter clause in the provise of the policy, with which we are concerned, is obvious, in that if the person had held a licence or as such was duly licensed and is not disqualified from holding such a licence, then he could be the driver of the vehicle. If this intention is discernible in the second part of the proviso, then on the facts available in the present case, it can be said that the driver of the vehicle had held a learners licence and was not disqualified from holding such a licence. Such a driver was consequently not excluded by the terms of the policy. What appears to us obvious from the terms of the latter clause of the proviso is that the emphasis is on the holder of the licence who is not disqualified to hold such a licence. This intent is inferable because the first part of the proviso deals with the holder of the licence as such which would include the holder of a learners licence. The second part can be read reasonably so as to include those classes of cases where the licence was not actually in force and was not held but was once held and there was no disqualification from holding such a licence. No doubt, there is much force in the submissions of Mr. Trivedi that this part of the proviso refers to a permanent driving licence and excludes a learners licence for the purpose of capacity along with the want of disqualification. But, as we have indicated, to so read the clauses would be reading something which is not in existence in law, in that a permanent driving licence and to exclude the licensing process as not covered by the learners licence. Furthermore, if for the first part the learners licence could be the part of the licensing, we fail to see how it would not form part of the latter clause. In the light of the provisions of section 96 (2) (b) (ii) of the Act, it is consistent to read the disjunctive part as intending and operating upon the disqualification of drivers who had once been duly licensed. The driving of a vehicle by such a person, we think, who has duly licensed and who was not disqualified is not at any rate clearly excepted by Clause (3) (b) of the General Exceptions available in the policy. ( 14 ) AS we have indicated above, Jaysing Jadhav did hold a licence in 1977 and immediately after the accident within a few days was given a regular income. There is no evidence of his disqualification to hold such a licence. Therefore, he would be in the permissive category of the drivers and as such not excepted by the conditions of the policy. At any rate, we feel by use of the words a permanent driving licence (other than a learners licence) and is not disqualified from holding such a licence, an ambiguity is introduced by the latter part of the proviso, the advantage of which cannot be taken by the Insurance Company while setting up the statutory defence under section 96 (2) (b) (ii) of the Act. The burden to establish the limited defence in law is on the Insurance Company and it has to satisfactorily and beyond ambiguity establish that there had been a breach of the specified condition of the policy which imposes the condition excluding driving by the persons of the kind mentioned by section 96 (2) (b) (ii) of the Act. Here we find, by reason of the latter part, that person who once held a licence and are not disqualified are permitted to be the drivers. If they are so permitted, the exclusion contemplated by sub-clause (ii) cannot be easily read. If there be ambiguity, the defence of the kind taken by the Insurance Company would not be upheld. ( 15 ) GENERALLY stated, such clause of the policy should receive the interpretation consistent with the intent of the parties to the contract and also to further the objects of the statute. This should particularly be so when contracts are in printed form and issued in usual course. If we were to go by the terms of section 96 (2) (b) (ii) of the Act, the exclusion could be of the persons who are not duly licensed or of the persons who had been disqualified, as is mentioned therein. To be within it, the terms of the policy should be specific. The terms of the present proviso are differently worded; and, possibly, do admit a position that the drivers who were once licensed and are not disqualified are not specifically excluded. We would prefer to interpret such a term in the policy document in the light of the purposes of the statute which makes a provision for indemnifying causes involving third parties in accidents and for satisfaction of claims arising therefrom in favour of the party affected rather than to absolve the insurance indemnity.
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answer would be clear that Jaysing Jadhav could not be the driver for the purpose of the policy. But the proviso does not halt there. It adds an independent clause after employing the disjunction or. If the clause after the disjunction or is taken note of, it permits a person who had held a permanent driving licence and who was not disqualified to be a driver of the vehicle. In other words, a person once duly licensed and not disqualified is not excluded from being a driver of the vehicle( 13 ) UNDOUBTEDLY, Mr. Trivedi relied on the words of this part so as to contend that such a person must be the holder of a permanent driving licence other than a learners licence, but as we have seen, the category of licences does admit the holder of a permanent driving licence and statutes like the provisions of section 96 (2) (b) (ii) of the Act use the phrase duly licensed that includes even the holder of a learners licence. The intention of the latter clause in the provise of the policy, with which we are concerned, is obvious, in that if the person had held a licence or as such was duly licensed and is not disqualified from holding such a licence, then he could be the driver of the vehicle. If this intention is discernible in the second part of the proviso, then on the facts available in the present case, it can be said that the driver of the vehicle had held a learners licence and was not disqualified from holding such a licence. Such a driver was consequently not excluded by the terms of the policy. What appears to us obvious from the terms of the latter clause of the proviso is that the emphasis is on the holder of the licence who is not disqualified to hold such a licence. This intent is inferable because the first part of the proviso deals with the holder of the licence as such which would include the holder of a learners licence. The second part can be read reasonably so as to include those classes of cases where the licence was not actually in force and was not held but was once held and there was no disqualification from holding such a licence. No doubt, there is much force in the submissions of Mr. Trivedi that this part of the proviso refers to a permanent driving licence and excludes a learners licence for the purpose of capacity along with the want of disqualification. But, as we have indicated, to so read the clauses would be reading something which is not in existence in law, in that a permanent driving licence and to exclude the licensing process as not covered by the learners licence. Furthermore, if for the first part the learners licence could be the part of the licensing, we fail to see how it would not form part of the latter clause. In the light of the provisions of section 96 (2) (b) (ii) of the Act, it is consistent to read the disjunctive part as intending and operating upon the disqualification of drivers who had once been duly licensed. The driving of a vehicle by such a person, we think, who has duly licensed and who was not disqualified is not at any rate clearly excepted by Clause (3) (b) of the General Exceptions available in the policy.( 14 ) AS we have indicated above, Jaysing Jadhav did hold a licence in 1977 and immediately after the accident within a few days was given a regular income. There is no evidence of his disqualification to hold such a licence. Therefore, he would be in the permissive category of the drivers and as such not excepted by the conditions of the policy. At any rate, we feel by use of the words a permanent driving licence (other than a learners licence) and is not disqualified from holding such a licence, an ambiguity is introduced by the latter part of the proviso, the advantage of which cannot be taken by the Insurance Company while setting up the statutory defence under section 96 (2) (b) (ii) of the Act. The burden to establish the limited defence in law is on the Insurance Company and it has to satisfactorily and beyond ambiguity establish that there had been a breach of the specified condition of the policy which imposes the condition excluding driving by the persons of the kind mentioned by section 96 (2) (b) (ii) of the Act. Here we find, by reason of the latter part, that person who once held a licence and are not disqualified are permitted to be the drivers. If they are so permitted, the exclusion contemplated bye (ii) cannot be easily read. If there be ambiguity, the defence of the kind taken by the Insurance Company would not be upheld.( 15 ) GENERALLY stated, such clause of the policy should receive the interpretation consistent with the intent of the parties to the contract and also to further the objects of the statute. This should particularly be so when contracts are in printed form and issued in usual course. If we were to go by the terms of section 96 (2) (b) (ii) of the Act, the exclusion could be of the persons who are not duly licensed or of the persons who had been disqualified, as is mentioned therein. To be within it, the terms of the policy should be specific. The terms of the present proviso are differently worded; and, possibly, do admit a position that the drivers who were once licensed and are not disqualified are not specifically excluded. We would prefer to interpret such a term in the policy document in the light of the purposes of the statute which makes a provision for indemnifying causes involving third parties in accidents and for satisfaction of claims arising therefrom in favour of the party affected rather than to absolve the insurance indemnity.
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Om Construction Co Vs. Ahmedabad Municipal Corp. & Another | arrived at a consensus regarding the passing of such an order. 9. Mr. Gambhir submitted that the Ahmedabad Municipal Corporation had themselves agreed to the appointment of an Arbitrator under the 1996 Act and could not, therefore, resile from such position in the instant case. 10. The stand taken by Mr. Gambhir was opposed by Mr. Shyam Divan, learned Senior Advocate, who supported the view taken by the High Court and submitted that the appellants remedy lay in the filing of a suit. In the alternative, it was also submitted that the decision in the matter could be deferred and a notice could be issued to the State of Gujarat to indicate as to whether it had any intention of publishing a Notification as contemplated in Section 2(k) of the Gujarat Tribunal Act. 11. Mr. Divan further submitted that in the absence of such Notification, clause 30 of Form B-I would remain inoperative and consequently the provisions relating to the settlement of disputes by arbitration would also not be available to the parties. 12. Mr. Divan urged that other than Clause 30 of Form B-I, there was no other provision for arbitration in the contract between the parties and the question of invoking jurisdiction under the 1996 Act was, therefore, misconceived. Mr. Divan urged that as the basic requirement of Sub-section (6) of Section 11 regarding an agreed procedure had not been fulfilled, neither the Chief Justice nor the Designated Court could assume jurisdiction thereunder for appointing an Arbitrator. 13. We have carefully considered the submissions made on behalf of the respective parties and it appears that we are called upon to decide two questions in order to decide this appeal. The first and possibly basic question is whether in the absence of a Notification in the Official Gazette, the Municipal Corporation can at all be considered as a Public Authority for the purpose of Section 2(1)(k) of the Gujarat Tribunal Act, 1992. The other question is whether the absence of a procedure for appointment of an Arbitrator in the Arbitration Agreement itself, would constitute a bar for the appointment of an Arbitrator under Section 11(6) or any other provision of the 1996 Act, when not only the parties to these proceedings, but the High Court as well, had arrived at a conclusion that the provisions of the Gujarat Tribunal Act, 1992, would not be applicable in the instant case. 14. In this regard, we are inclined to accept the submissions of Mr. Gambhir notwithstanding the fact that the Ahmedabad Municipal Corporation had not been notified to be a Public Undertaking as defined in Section 2(1)(iii) of the Gujarat Tribunal Act, 1992. There is no dispute that the Ahmedabad Municipal Corporation is a local authority and it could assume the garb of a Public Undertaking only pursuant to a Notification published in that regard in the Official Gazette. On the other hand, even if Form B-I loses its relevance as far as the present contract is concerned, since the parties have agreed to resolution of their disputes by arbitration, the provisions of Sub-section (5) of the 1996 Act can be pressed into service to enable the parties to invoke the powers of the Chief Justice to appoint an Arbitrator. The stand taken by Mr. Divan is highly technical and is not in aid of resolution of the disputes between the parties by an Arbitral Tribunal. While recognizing the right of the appellant to approach the Chief Justice or the Designated Court under Section 11(6) of the 1996 Act, the stand of the respondent Corporation has been that the party should be relegated to suit, which is quite contrary to the stand taken by it in the case of other employees. 15. Section 11 of the 1996 Act deals exclusively with the appointment of Arbitrators. Sub-section (2) provides that the parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators but subject to Sub-section (6) which provides that if an agreed procedure had not been acted upon, the parties could approach the Chief Justice or his Designate for appointment of an Arbitrator. Sub-sections (3), (4) and (5) contemplate different situations in which the Chief Justice or his Designate could be requested to appoint an Arbitrator. In our view, in the facts of this case, the answer to the question thrown up in this appeal lies in Sub-clause (5) of Section 11 of the 1996 Act, which reads as follows: - (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. 16. Having arrived at the aforesaid conclusion, the only question that remains to be decided is whether this matter should be remitted to the High Court for appointment of an Arbitrator or whether we should ourselves appoint an Arbitrator in terms of the Arbitration Agreement. Remitting the matter to the High Court would only mean another round of litigation, whereas if the appointment is made by us, the matter will achieve finality, which would ultimately be beneficial for all concerned. 17. We, accordingly, allow the appeal and appoint Honble Mr. Justice C.K. Thakker, a former Judge of the Supreme Court, presently settled at D-64, Akash Towers, Judges Bungalow Road, Vastrapur, Ahmedabad to be the Arbitrator for settlement of the disputes which have arisen between the parties. The learned Arbitrator shall fix his own fees and shall also formulate the procedure to be adopted by him during the arbitration proceedings. The Arbitrator shall try and publish his Award as expeditiously as possible, but positively within six months from the date of entering upon the Reference. The Arbitrator will also decide the venue and sittings of the Arbitral Tribunal in consultation with the parties. | 1[ds]Having arrived at the aforesaid conclusion, the only question that remains to be decided is whether this matter should be remitted to the High Court for appointment of an Arbitrator or whether we should ourselves appoint an Arbitrator in terms of the Arbitration Agreement. Remitting the matter to the High Court would only mean another round of litigation, whereas if the appointment is made by us, the matter will achieve finality, which would ultimately be beneficial for all concernedWe, accordingly, allow the appeal and appoint Honble Mr. Justice C.K. Thakker, a former Judge of the Supreme Court, presently settled at D-64, Akash Towers, Judges Bungalow Road, Vastrapur, Ahmedabad to be the Arbitrator for settlement of the disputes which have arisen between the parties. The learned Arbitrator shall fix his own fees and shall also formulate the procedure to be adopted by him during the arbitration proceedings. The Arbitrator shall try and publish his Award as expeditiously as possible, but positively within six months from the date of entering upon the Reference. The Arbitrator will also decide the venue and sittings of the Arbitral Tribunal in consultation with the parties | 1 | 2,703 | 211 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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arrived at a consensus regarding the passing of such an order. 9. Mr. Gambhir submitted that the Ahmedabad Municipal Corporation had themselves agreed to the appointment of an Arbitrator under the 1996 Act and could not, therefore, resile from such position in the instant case. 10. The stand taken by Mr. Gambhir was opposed by Mr. Shyam Divan, learned Senior Advocate, who supported the view taken by the High Court and submitted that the appellants remedy lay in the filing of a suit. In the alternative, it was also submitted that the decision in the matter could be deferred and a notice could be issued to the State of Gujarat to indicate as to whether it had any intention of publishing a Notification as contemplated in Section 2(k) of the Gujarat Tribunal Act. 11. Mr. Divan further submitted that in the absence of such Notification, clause 30 of Form B-I would remain inoperative and consequently the provisions relating to the settlement of disputes by arbitration would also not be available to the parties. 12. Mr. Divan urged that other than Clause 30 of Form B-I, there was no other provision for arbitration in the contract between the parties and the question of invoking jurisdiction under the 1996 Act was, therefore, misconceived. Mr. Divan urged that as the basic requirement of Sub-section (6) of Section 11 regarding an agreed procedure had not been fulfilled, neither the Chief Justice nor the Designated Court could assume jurisdiction thereunder for appointing an Arbitrator. 13. We have carefully considered the submissions made on behalf of the respective parties and it appears that we are called upon to decide two questions in order to decide this appeal. The first and possibly basic question is whether in the absence of a Notification in the Official Gazette, the Municipal Corporation can at all be considered as a Public Authority for the purpose of Section 2(1)(k) of the Gujarat Tribunal Act, 1992. The other question is whether the absence of a procedure for appointment of an Arbitrator in the Arbitration Agreement itself, would constitute a bar for the appointment of an Arbitrator under Section 11(6) or any other provision of the 1996 Act, when not only the parties to these proceedings, but the High Court as well, had arrived at a conclusion that the provisions of the Gujarat Tribunal Act, 1992, would not be applicable in the instant case. 14. In this regard, we are inclined to accept the submissions of Mr. Gambhir notwithstanding the fact that the Ahmedabad Municipal Corporation had not been notified to be a Public Undertaking as defined in Section 2(1)(iii) of the Gujarat Tribunal Act, 1992. There is no dispute that the Ahmedabad Municipal Corporation is a local authority and it could assume the garb of a Public Undertaking only pursuant to a Notification published in that regard in the Official Gazette. On the other hand, even if Form B-I loses its relevance as far as the present contract is concerned, since the parties have agreed to resolution of their disputes by arbitration, the provisions of Sub-section (5) of the 1996 Act can be pressed into service to enable the parties to invoke the powers of the Chief Justice to appoint an Arbitrator. The stand taken by Mr. Divan is highly technical and is not in aid of resolution of the disputes between the parties by an Arbitral Tribunal. While recognizing the right of the appellant to approach the Chief Justice or the Designated Court under Section 11(6) of the 1996 Act, the stand of the respondent Corporation has been that the party should be relegated to suit, which is quite contrary to the stand taken by it in the case of other employees. 15. Section 11 of the 1996 Act deals exclusively with the appointment of Arbitrators. Sub-section (2) provides that the parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators but subject to Sub-section (6) which provides that if an agreed procedure had not been acted upon, the parties could approach the Chief Justice or his Designate for appointment of an Arbitrator. Sub-sections (3), (4) and (5) contemplate different situations in which the Chief Justice or his Designate could be requested to appoint an Arbitrator. In our view, in the facts of this case, the answer to the question thrown up in this appeal lies in Sub-clause (5) of Section 11 of the 1996 Act, which reads as follows: - (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. 16. Having arrived at the aforesaid conclusion, the only question that remains to be decided is whether this matter should be remitted to the High Court for appointment of an Arbitrator or whether we should ourselves appoint an Arbitrator in terms of the Arbitration Agreement. Remitting the matter to the High Court would only mean another round of litigation, whereas if the appointment is made by us, the matter will achieve finality, which would ultimately be beneficial for all concerned. 17. We, accordingly, allow the appeal and appoint Honble Mr. Justice C.K. Thakker, a former Judge of the Supreme Court, presently settled at D-64, Akash Towers, Judges Bungalow Road, Vastrapur, Ahmedabad to be the Arbitrator for settlement of the disputes which have arisen between the parties. The learned Arbitrator shall fix his own fees and shall also formulate the procedure to be adopted by him during the arbitration proceedings. The Arbitrator shall try and publish his Award as expeditiously as possible, but positively within six months from the date of entering upon the Reference. The Arbitrator will also decide the venue and sittings of the Arbitral Tribunal in consultation with the parties.
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Having arrived at the aforesaid conclusion, the only question that remains to be decided is whether this matter should be remitted to the High Court for appointment of an Arbitrator or whether we should ourselves appoint an Arbitrator in terms of the Arbitration Agreement. Remitting the matter to the High Court would only mean another round of litigation, whereas if the appointment is made by us, the matter will achieve finality, which would ultimately be beneficial for all concernedWe, accordingly, allow the appeal and appoint Honble Mr. Justice C.K. Thakker, a former Judge of the Supreme Court, presently settled at D-64, Akash Towers, Judges Bungalow Road, Vastrapur, Ahmedabad to be the Arbitrator for settlement of the disputes which have arisen between the parties. The learned Arbitrator shall fix his own fees and shall also formulate the procedure to be adopted by him during the arbitration proceedings. The Arbitrator shall try and publish his Award as expeditiously as possible, but positively within six months from the date of entering upon the Reference. The Arbitrator will also decide the venue and sittings of the Arbitral Tribunal in consultation with the parties
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M/s. Raptakos Brett & Co. Ltd Vs. Ganesh Property | avoided and such a technical contention which does not advance the case of justice should be rejected. That the courts always lean in favour of curing such technical obstacles which have no bearing on the merits of the controversy between the parties. In this connection Dr. Singhvi pressed in service to two decisions of this Court. In Bansidhar Sankarlal v. Md. Ibrahim and another, AIR 1971 SC 1292 , Shah, J., speaking for the two Judge Bench held in paragraph 8 of the report that even if a suit or proceeding is instituted by a liquidator without obtaining leave of the company court as per the provisions of Section 171 of the Companies Act, 1913, which even barred the commencement of such proceedings against a company without the leave of the Court, once the leave is granted subsequently, the proceedings would be treated as not barred on the date of granting of leave. That the aforesaid observations of this Court relied on by Dr. Singhvi are quite relevant and apposite for deciding the present controversy as such an approach would avoid placing reliance on pure technicalities and would further the ends of justice by enabling the court to adjudicate the matter on merits between the parties and unnecessary proliferation of litigation will get avoided. In this connection Dr. Singhvi also invited our attention to another decision of this Court in Everest Coal Company Pvt. Ltd. v. State of Bihar and others, AIR 1977 SC 2304 , wherein Krishna Iyer, J., speaking for a two Judge Bench of this Court considered the effect of filing of a suit by a receiver appointed under Order 40 Rule 1 of the CPC without obtaining prior leave of the Court. It was held in the said decision that if such a suit was filed by a receiver and if subsequently leave was obtained it would validate the suit. Krishna Iyer, J., noted that filing of the suit without leave of the court would amount to contempt of the court and still subsequently obtained leave would cure the defect and remove the sin. In paragraph 11 of the Report it was observed that : ".......... Once amends are made by later leave being obtained, the gravamen is gone and the suit can proceed. The pity is that sometimes even such points are expanded into important questions calculated to protract Indian litigation already suffering from unhealthy longevity." Placing reliance on these decisions of this Court, it was submitted by Dr. Singhvi that the decision of this Court in 1989(3) SCC 476 (supra) requires to be reconsidered. 34. We, prima facie, find substance in what is contended by Dr. Singhvi for the respondent. It is obvious that even if the suit is filed by an unregistered partnership firm, against a third party and is treated to be incompetent as per Section 69 sub-section (2) of the Partnership Act, if pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side. As rightly submitted by Dr. Singhvi that, Order 7 Rule 13 of the CPC would permit the filing of a fresh suit on the same cause of Action and if the earlier suit is permitted to be continued it would continue in the old number and the parties to the litigation would be able to get their claim adjudicated on merits earlier while on the other hand if such subsequent registration is not held to be of any avail, all that would happen is that a fresh suit can be filed immediately after such registration and then it will bear a new number of a subsequent year. That would further delay the adjudicatory process of the court as such a new suit would take years before it gets ready for trial and the parties will be further deprived of an opportunity to get their disputes adjudicated on merits at the earliest and the arrears of cases pending in the court would go on mounting. It is axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require a re-look at the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration. Point No. 3 : 35. As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69 sub-section (2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal. | 0[ds]We fail to appreciate how this decision can advance the case of the appellant. All that it says is that on determination of tenancy the tenant would be bound to restore the possession of the demised premises to the erstwhile landlord and if there is an express term/covenant in the lease to that effect it would apply and if there is no express covenant the law will imply an obligation to that effect of the erstwhile tenant. As we have noted in the present case there is an express covenant in the lease which also was relied upon by the plaintiff. But in the absence of such an express covenant the law would imply a statutory obligation on the part of theto deliver and restore vacant possession of demised premises to the landlord on determination of the lease. That would obviously create a legal right in favour of the landlord and corresponding legal duty and obligation on the part of theThat is precisely what is being sought to be enforced by the plaintiff by basing its right to possession also on the law of thethe facts of the present case it has to be held that there is no further locus poenetentiae given to the tenant to continue to remain in possession after the determination of lease by efflux of time on the basis of any such contrary express term in the lease. Consequently, it is the legal obligation flowing from Section 108(q) of the Act which would get squarely attracted on the facts of the present case and once this suit is also for enforcement of such a legal right under the law of the land available to the landlord it cannot be said that enforcement of such right arises out of any of the express terms of the contract which would in turn get visited by the bar of Section 69(2) of the Partnership Act. Consequently it has to be held that when paragraph 2 of the plaint in addition made a reference to right of the plaintiff to get possession under the law of the land, the plaintiff was seeking enforcement of its legal right to possession against the erstwhile lessee flowing from the provisions of Section 108(q) read with Section 111(a) of the Property Act which in turn also sought to enforce the corresponding statutory obligation of the defendant under the very same statutory provisions. So far as this part of the cause of Action is concerned it stands completely outside the sweep of Section 69(2) of the Partnership Act. The net result of this discussion is that the present suit can be said to be partly barred by Section 69(2) so far as it sought to enforce the obligation of the defendant under Clauses 14 and 17 of the contract of lease read with the relevant recitals in this connection as found in paragraph 2 of the plaint. But it was partly not barred by Section 69(2) in so far as the plaintiff based a part of its cause of Action also on the law of the land, namely, Transfer of Property Act whereunder the plaintiff had sought to enforce its statutory right under Section 108(q) read with Section 111(a) of the Property Act. Enforcement of that right had nothing to do with the earlier contract which had stood determined by efflux of time. The first point for determination, therefore, has accordingly, to be held partly in favour of the plaintiff and partly in favour of the defendant. As the decree for possession is passed on the basis of both parts of causes of Action, even if it is not supportable on the first part, it will remain well sustained on the second part of the very same cause of Action.29. In view of our conclusion on point No. 1, though the appellant partly succeeds thereon the ultimate decree for peaceful possession against the appellant would remain wellis axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require aat the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration.As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69(2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal. | 0 | 15,668 | 1,007 | ### 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:
avoided and such a technical contention which does not advance the case of justice should be rejected. That the courts always lean in favour of curing such technical obstacles which have no bearing on the merits of the controversy between the parties. In this connection Dr. Singhvi pressed in service to two decisions of this Court. In Bansidhar Sankarlal v. Md. Ibrahim and another, AIR 1971 SC 1292 , Shah, J., speaking for the two Judge Bench held in paragraph 8 of the report that even if a suit or proceeding is instituted by a liquidator without obtaining leave of the company court as per the provisions of Section 171 of the Companies Act, 1913, which even barred the commencement of such proceedings against a company without the leave of the Court, once the leave is granted subsequently, the proceedings would be treated as not barred on the date of granting of leave. That the aforesaid observations of this Court relied on by Dr. Singhvi are quite relevant and apposite for deciding the present controversy as such an approach would avoid placing reliance on pure technicalities and would further the ends of justice by enabling the court to adjudicate the matter on merits between the parties and unnecessary proliferation of litigation will get avoided. In this connection Dr. Singhvi also invited our attention to another decision of this Court in Everest Coal Company Pvt. Ltd. v. State of Bihar and others, AIR 1977 SC 2304 , wherein Krishna Iyer, J., speaking for a two Judge Bench of this Court considered the effect of filing of a suit by a receiver appointed under Order 40 Rule 1 of the CPC without obtaining prior leave of the Court. It was held in the said decision that if such a suit was filed by a receiver and if subsequently leave was obtained it would validate the suit. Krishna Iyer, J., noted that filing of the suit without leave of the court would amount to contempt of the court and still subsequently obtained leave would cure the defect and remove the sin. In paragraph 11 of the Report it was observed that : ".......... Once amends are made by later leave being obtained, the gravamen is gone and the suit can proceed. The pity is that sometimes even such points are expanded into important questions calculated to protract Indian litigation already suffering from unhealthy longevity." Placing reliance on these decisions of this Court, it was submitted by Dr. Singhvi that the decision of this Court in 1989(3) SCC 476 (supra) requires to be reconsidered. 34. We, prima facie, find substance in what is contended by Dr. Singhvi for the respondent. It is obvious that even if the suit is filed by an unregistered partnership firm, against a third party and is treated to be incompetent as per Section 69 sub-section (2) of the Partnership Act, if pending the suit before a decree is obtained the plaintiff puts its house in order and gets itself registered the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side. As rightly submitted by Dr. Singhvi that, Order 7 Rule 13 of the CPC would permit the filing of a fresh suit on the same cause of Action and if the earlier suit is permitted to be continued it would continue in the old number and the parties to the litigation would be able to get their claim adjudicated on merits earlier while on the other hand if such subsequent registration is not held to be of any avail, all that would happen is that a fresh suit can be filed immediately after such registration and then it will bear a new number of a subsequent year. That would further delay the adjudicatory process of the court as such a new suit would take years before it gets ready for trial and the parties will be further deprived of an opportunity to get their disputes adjudicated on merits at the earliest and the arrears of cases pending in the court would go on mounting. It is axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require a re-look at the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration. Point No. 3 : 35. As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69 sub-section (2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal.
### Response:
0
### Explanation:
We fail to appreciate how this decision can advance the case of the appellant. All that it says is that on determination of tenancy the tenant would be bound to restore the possession of the demised premises to the erstwhile landlord and if there is an express term/covenant in the lease to that effect it would apply and if there is no express covenant the law will imply an obligation to that effect of the erstwhile tenant. As we have noted in the present case there is an express covenant in the lease which also was relied upon by the plaintiff. But in the absence of such an express covenant the law would imply a statutory obligation on the part of theto deliver and restore vacant possession of demised premises to the landlord on determination of the lease. That would obviously create a legal right in favour of the landlord and corresponding legal duty and obligation on the part of theThat is precisely what is being sought to be enforced by the plaintiff by basing its right to possession also on the law of thethe facts of the present case it has to be held that there is no further locus poenetentiae given to the tenant to continue to remain in possession after the determination of lease by efflux of time on the basis of any such contrary express term in the lease. Consequently, it is the legal obligation flowing from Section 108(q) of the Act which would get squarely attracted on the facts of the present case and once this suit is also for enforcement of such a legal right under the law of the land available to the landlord it cannot be said that enforcement of such right arises out of any of the express terms of the contract which would in turn get visited by the bar of Section 69(2) of the Partnership Act. Consequently it has to be held that when paragraph 2 of the plaint in addition made a reference to right of the plaintiff to get possession under the law of the land, the plaintiff was seeking enforcement of its legal right to possession against the erstwhile lessee flowing from the provisions of Section 108(q) read with Section 111(a) of the Property Act which in turn also sought to enforce the corresponding statutory obligation of the defendant under the very same statutory provisions. So far as this part of the cause of Action is concerned it stands completely outside the sweep of Section 69(2) of the Partnership Act. The net result of this discussion is that the present suit can be said to be partly barred by Section 69(2) so far as it sought to enforce the obligation of the defendant under Clauses 14 and 17 of the contract of lease read with the relevant recitals in this connection as found in paragraph 2 of the plaint. But it was partly not barred by Section 69(2) in so far as the plaintiff based a part of its cause of Action also on the law of the land, namely, Transfer of Property Act whereunder the plaintiff had sought to enforce its statutory right under Section 108(q) read with Section 111(a) of the Property Act. Enforcement of that right had nothing to do with the earlier contract which had stood determined by efflux of time. The first point for determination, therefore, has accordingly, to be held partly in favour of the plaintiff and partly in favour of the defendant. As the decree for possession is passed on the basis of both parts of causes of Action, even if it is not supportable on the first part, it will remain well sustained on the second part of the very same cause of Action.29. In view of our conclusion on point No. 1, though the appellant partly succeeds thereon the ultimate decree for peaceful possession against the appellant would remain wellis axiomatic to say that as a result of protracted litigation spread over tiers and tiers of court proceedings in hierarchy, the ultimate result before the highest court would leave both the parties completely frustrated and financially drained off. To borrow the analogy in an English poem with caption "death the leveller", with appropriate modifications, the situation emerging in such cases can be visualised as under : "upon final courts purple alter see how victor victim bleed". All these considerations in an appropriate case may require aat the decision of the two member Bench of this Court in 1989(3) SCC 476 (supra). However, as we have noted earlier, on the facts of the present case, it is not necessary for us to express any final opinion on this question or to direct reference to a larger Bench for reconsidering the aforesaid decision. With these observations we bring down the curtains on this controversy. Point No. 2, therefore, is answered by observing that it is not necessary on the facts of the present case in the light of our decision on the first point to decide this point one way or the other. Point No. 2 is, therefore, left undecided as not surviving for consideration.As a result of the aforesaid discussion, it is held that the suit as filed by the respondent was partly barred under Section 69(2) of the Partnership Act but was partly not barred and consequently the decree passed by the Trial Court as confirmed by the High Court is held to have remained well sustained and calls for no interference in the present appeal.
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Employers In Relation To Punjab National Bank Vs. Ghulam Dastagir | decision in other cases are rather illustrative than determinative. To crystalise criteria conclusively is baffling but board indications may be available from decisions. The "beedi cases" turn on the reality of "independent contractors" standing in between the management and the beedi workers. This Court, in many such cases discovered that there was a common practice of using deceptive devices and the so called independent contractors were really agents or workers of the management posing as independent contractors for the purpose of circumventing the Factories Act and like statute which compel managements to meet certain economic and social obligations towards the workers. We have no doubt that if an this case there was evidence to show any colourable device resorted to by the Bank, our conclusion would have been adverse to the management. On the other hand, the evidence adduced before the Tribunal, oral and documentary, lead only to one conclusion that the Bank made available certain allowance to facilitate the Area Manager, Shri Sharma Privately to engage a driver. Of course, the jeep which he was to drive, its petrol and oil requirements and maintenance, all fell within the financial responsibility of the Bank. So far as the driver was concerned, his salary was paid by Shri Sharma as his employer who draw the same granted to him by way of allowance from the Bank. There is nothing on record to make out a nexus between the Bank and the driver. There is nothing on record to indicate that the control and direction of the driver vested in the Bank. After all, the evidence is clearly to the contrary. In the absence of material to make out that the driver was employed by the Bank, was under its direction and control, was paid his salary by the Bank and otherwise was included in the army of employees in the establishment of the Bank, we cannot assume the crucial point which remains to be proved. We must remember that there is no case of camouflage or circumvention of any statute. It is not unusual for public sector industry or a nationalised banking institution to give allowances to its high-level officers leaving it to them to engage the services of drivers or others for fulfilling the needs for which the allowances are meant. In this view, we are clear that the award fails as it is unsupportable. We, therefore, reverse the award.4. We wish to make two comments. It is quite conceivable that the facts in the case employment of other drivers may be different. If other materials are available regarding in terms and conditions of service, regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this Bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case. Evidence is shaped in each case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved.5. We are impressed with Shri Kheras appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for public sector undertaking like a notionalised Bank. We hope that the possibility of abuse of the system of drivers allowances and the obligation of the public sector undertaking to be model employers will lead to a change in the approach of our nationalised Banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some sum by way of allowances in lieu of procuring such services. A fair and straight-forward method would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only/conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable.6. In the course of the arguments we had indicated to Dr. Anand Prakash, as he presented the case of the management, that our whole approach may not turn purely on technicalities of evidence but on considerations of social justice. He readily responded to the spirit in which we put this aspect to him. On behalf of the management, Dr. Anand Prakash gave us an assurance that this driver, though not an employee of the Bank, would be paid ex gratia a sum of Rs. 7, 500 (less a sum Rs. 897.24 which has already been paid on an earlier occasion). The appellant-Bank will further see that within three months from today, the respondent driver is absorbed in the personal service of one or other of the higher officers of the Bank in or around Calcutta on a salary of not less than Rs. 250. The driver-respondent will be given intimation by registered notice about this offer of absorption. And, if he does not report within one month of the receipt of such notice, this part of the assurance will lapse. | 1[ds]5. We are impressed with Shri Kheras appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for public sector undertaking like a notionalised Bank. We hope that the possibility of abuse of the system of drivers allowances and the obligation of the public sector undertaking to be model employers will lead to a change in the approach of our nationalised Banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some sum by way of allowances in lieu of procuring such services. A fair andmethod would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only/conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable. | 1 | 1,778 | 303 | ### 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:
decision in other cases are rather illustrative than determinative. To crystalise criteria conclusively is baffling but board indications may be available from decisions. The "beedi cases" turn on the reality of "independent contractors" standing in between the management and the beedi workers. This Court, in many such cases discovered that there was a common practice of using deceptive devices and the so called independent contractors were really agents or workers of the management posing as independent contractors for the purpose of circumventing the Factories Act and like statute which compel managements to meet certain economic and social obligations towards the workers. We have no doubt that if an this case there was evidence to show any colourable device resorted to by the Bank, our conclusion would have been adverse to the management. On the other hand, the evidence adduced before the Tribunal, oral and documentary, lead only to one conclusion that the Bank made available certain allowance to facilitate the Area Manager, Shri Sharma Privately to engage a driver. Of course, the jeep which he was to drive, its petrol and oil requirements and maintenance, all fell within the financial responsibility of the Bank. So far as the driver was concerned, his salary was paid by Shri Sharma as his employer who draw the same granted to him by way of allowance from the Bank. There is nothing on record to make out a nexus between the Bank and the driver. There is nothing on record to indicate that the control and direction of the driver vested in the Bank. After all, the evidence is clearly to the contrary. In the absence of material to make out that the driver was employed by the Bank, was under its direction and control, was paid his salary by the Bank and otherwise was included in the army of employees in the establishment of the Bank, we cannot assume the crucial point which remains to be proved. We must remember that there is no case of camouflage or circumvention of any statute. It is not unusual for public sector industry or a nationalised banking institution to give allowances to its high-level officers leaving it to them to engage the services of drivers or others for fulfilling the needs for which the allowances are meant. In this view, we are clear that the award fails as it is unsupportable. We, therefore, reverse the award.4. We wish to make two comments. It is quite conceivable that the facts in the case employment of other drivers may be different. If other materials are available regarding in terms and conditions of service, regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this Bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case. Evidence is shaped in each case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved.5. We are impressed with Shri Kheras appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for public sector undertaking like a notionalised Bank. We hope that the possibility of abuse of the system of drivers allowances and the obligation of the public sector undertaking to be model employers will lead to a change in the approach of our nationalised Banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some sum by way of allowances in lieu of procuring such services. A fair and straight-forward method would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only/conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable.6. In the course of the arguments we had indicated to Dr. Anand Prakash, as he presented the case of the management, that our whole approach may not turn purely on technicalities of evidence but on considerations of social justice. He readily responded to the spirit in which we put this aspect to him. On behalf of the management, Dr. Anand Prakash gave us an assurance that this driver, though not an employee of the Bank, would be paid ex gratia a sum of Rs. 7, 500 (less a sum Rs. 897.24 which has already been paid on an earlier occasion). The appellant-Bank will further see that within three months from today, the respondent driver is absorbed in the personal service of one or other of the higher officers of the Bank in or around Calcutta on a salary of not less than Rs. 250. The driver-respondent will be given intimation by registered notice about this offer of absorption. And, if he does not report within one month of the receipt of such notice, this part of the assurance will lapse.
### Response:
1
### Explanation:
5. We are impressed with Shri Kheras appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for public sector undertaking like a notionalised Bank. We hope that the possibility of abuse of the system of drivers allowances and the obligation of the public sector undertaking to be model employers will lead to a change in the approach of our nationalised Banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some sum by way of allowances in lieu of procuring such services. A fair andmethod would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only/conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable.
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M.K. Kotecha Vs. Commnr.Of Cent.Excise,Aurangabad | the three units of the appellant. The contract price agreed upon was based on complete break-up of the charges including the prices of the RCC pipes and collars. The said pipes were manufactured in the factory of the appellant. They were cleared therefrom. The pricing of RCC pipes and collars was indicated in the project reports. They were based on the pricing guidelines fixed by Maharashtra State Sewerage and Water Board. The said Board had made rate analysis to arrive at the value of the RCC pipes and collars. Therefore, the appellant knew of the comparability of his goods with those of other manufacturers. Hence, the Collector was right in coming to the conclusion that the appellant had wilfully mis-stated and suppressed the facts in order to mislead the department. Consequently, the department was right in invoking the larger period for demand of duty under the proviso to Section 11A(1). 21. Lastly, on facts, we find that Rules 1 to 6 of the Valuation Rules, 1975 had no application. As stated above, Rule 6(b) was applicable to captive consumption. In this case, Rule 6(b) was not attracted. Therefore, the department was right in making best judgment assessment under the aforestated Rule 7 of the Valuation Rules, 1975. 22. In the case of United Glass v. Collector of Central Excise, reported in 1995 (75) ELT 209 , this Court held that Rule 7 of the Valuation Rules, 1975 was in the nature of a residuary rule, applicable only when valuation cannot be decided under other rules. In the present case, the department was, therefore, right in invoking Rule 7. 23. Mr. C.N. Sree Kumar, learned Counsel for the appellant submitted that since the classification lists and the price list were earlier approved, subsequently found to be erroneous or defective, reclassification and liability to pay duty would commence only from the date of show-cause notice and not for the period prior thereto. He further submitted that the omission to enter correct prices in the price list did not amount to contravention of Rule 173C. In support, he relied upon several authorities. 24. In the case of Universal Cables Ltd. Satna v. Union of India and Others, reported in 1977 (1) ELT page J.92, on which reliance was placed on behalf of the appellant, it was held that omission to enter correct price in the price list was not a contravention of Rule 173C within the meaning of Rule 173Q. However, on facts, the High Court found that the assessee had filed list in the proper form and in the manner prescribed under Rule 173C showing the price of the goods and, therefore, there was no contravention of that rule. In the present case, as stated above, there is a contravention of Rule 6(b) of the Valuation Rules, 1975 read with Part VI(a) of the price list proforma. Hence, the judgment in the case of Universal Cables Ltd. (supra), is not applicable to the present csae. 25. In the case of Collector of Central Excise, Baroda v. Cotspun Limited, reported in VIII (1999) SLT 368=1999 (113) ELT 353 , this Court held that the word “short-levy” in Section 11A(1) will not apply to cases where excise duty was levied on the basis of approved classification list. Learned Counsel for the appellant heavily relied upon on this authority. In our view, the said judgment has no application to the present case for two reasons : firstly, the basis of the said judgment is obliterated in view of the Amendment Act No. 10 of 2000 by which the expression “short-levy” has been redefined to include levy resulting from mistaken approval granted to the classification list. The validity of this amendment has been upheld in a recent judgment of this Court in the case of ITW Signode India Ltd. v. Collector of Central Excise, reported in I (2004) SLT 54=(2004) 3 SCC 48 , to which one of us [Dr. AR. Lakshmanan, J.] was a party. Secondly, the decision in Cotspun Limited’s (supra), was confined to interpretation of the word “short-levy” in Section 11A(1). That judgment was not concerned with the proviso to Section 11A(1). In fact, vide para 67 of the judgment of this Court in ITW Signode India Ltd. (supra), it has been observed that the extended period of limitation under the proviso can be invoked in case of positive acts of fraud, collusion, wilful mis-statement or suppression of fact on the Part of the assessee and that such a positive act must be in contradistinction to mere inaction. The present case is not a case of simple omission. It is a case of wilful mis-statement leading to under-estimation of value of goods cleared by the appellant. In the circumstances, we do not find any merit in this appeal.26. Before concluding, we may point out that under the show-cause notice, the department had alleged that the appellant had collected extra amount to the tune of Rs. 21,74,963/- in the guise of central excise duty over and above the duty actually paid to the department. The Collector found that the appellant had collected the said amount under the guise of Central Excise duty from his clients, who were billed for full quantum of duty paid whereas under the relevant notification, the appellant had paid duty at nil rate or at lower rate. Despite this finding, the Collector came to the conclusion that the said finding was based on presumptions and not on evidence and consequently, the Collector dropped the demand for Rs. 21,74,963/- made under Section 11D as not capable of being substantiated. Surprisingly, no appeal was preferred by the department to the Tribunal in respect of the demand for Rs. 21,74,963/-. Even the Collector did not make further inquiries to substantiate such demand.We are conscious of the rising revenue deficit. In several matters, we find slippages of revenue on such counts. Therefore, we expect, Mr. Mohan Parasaran, Additional Solicitor General, to bring our present judgment and order to the notice of the Finance Ministry. | 0[ds]However, the annexure to the price list indicates that the appellant had mischievously priced the said RCC pipes/collars on cost basis without estimating the profits. The Price List proforma in Part VI(b) refers to cases where comparable prices are not available and consequently, the determination of assessable value was required to be done on the basis of the total cost. The particulars required to be given by the assessee under Part VI(a) are different from the particulars under Part VI(b) of proforma price list. Under Part VI(a), the particulars are required to be given in respect of excisable goods not for sale but for captive consumption on the footing that the assessee is aware of the comparable prices. In that respect, he is required to give assessable value of the comparable goods under Part VI(a). Similarly, under Part VI(a), the assessee is required to give particulars of the difference, if any, in the material characteristics of the goods under assessment and comparable goods. On the other hand, in cases falling under Part VI(b), the assessee is required to furnish particulars of cost of production or manufacture on a separate sheet, annexed to the price list. The 3rd and the 4th column of Part VI(b) refers to computation of assessable value of goods based on the aggregate cost, together with the profits that would normally accrue to the assessee. [See: Column (5) of PartFurther, in the present case, the appellant submitted before the Collector that he had undertaken a composite contract (project) and, therefore, the prices of comparable goods were not available. However, as found by the Collector on evidence, the RCC pipes and collars were manufactured by the three units of the appellant. The contract price agreed upon was based on complete break-up of the charges including the prices of the RCC pipes and collars. The said pipes were manufactured in the factory of the appellant. They were cleared therefrom. The pricing of RCC pipes and collars was indicated in the project reports. They were based on the pricing guidelines fixed by Maharashtra State Sewerage and Water Board. The said Board had made rate analysis to arrive at the value of the RCC pipes and collars. Therefore, the appellant knew of the comparability of his goods with those of other manufacturers. Hence, the Collector was right in coming to the conclusion that the appellant had wilfully mis-stated and suppressed the facts in order to mislead the department. Consequently, the department was right in invoking the larger period for demand of duty under the proviso to Section. In the case of United Glass v. Collector of Central Excise, reported in 1995 (75) ELT 209 , this Court held that Rule 7 of the Valuation Rules, 1975 was in the nature of a residuary rule, applicable only when valuation cannot be decided under other rules. In the present case, the department was, therefore, right in invoking Rulevalidity of this amendment has been upheld in a recent judgment of this Court in the case of ITW Signode India Ltd. v. Collector of Central Excise, reported in I (2004) SLT 54=(2004) 3 SCC 48 , to which one of us [Dr. AR. Lakshmanan, J.] was a party. Secondly, the decision in Cotspun(supra), was confined to interpretation of the wordin Section 11A(1). That judgment was not concerned with the proviso to Section 11A(1). In fact, vide para 67 of the judgment of this Court in ITW Signode India Ltd. (supra), it has been observed that the extended period of limitation under the proviso can be invoked in case of positive acts of fraud, collusion, wilful mis-statement or suppression of fact on the Part of the assessee and that such a positive act must be in contradistinction to mere inaction. The present case is not a case of simple omission. It is a case of wilful mis-statement leading to under-estimation of value of goods cleared by the appellant. In the circumstances, we do not find any merit in this appeal.26. Before concluding, we may point out that under the show-cause notice, the department had alleged that the appellant had collected extra amount to the tune of Rs. 21,74,963/- in the guise of central excise duty over and above the duty actually paid to the department. The Collector found that the appellant had collected the said amount under the guise of Central Excise duty from his clients, who were billed for full quantum of duty paid whereas under the relevant notification, the appellant had paid duty at nil rate or at lower rate. Despite this finding, the Collector came to the conclusion that the said finding was based on presumptions and not on evidence and consequently, the Collector dropped the demand for Rs. 21,74,963/- made under Section 11D as not capable of being substantiated. Surprisingly, no appeal was preferred by the department to the Tribunal in respect of the demand for Rs. 21,74,963/-. Even the Collector did not make further inquiries to substantiate such demand.We are conscious of the rising revenue deficit. In several matters, we find slippages of revenue on such counts. Therefore, we expect, Mr. Mohan Parasaran, Additional Solicitor General, to bring our present judgment and order to the notice of the Finance Ministry. | 0 | 4,938 | 1,011 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
the three units of the appellant. The contract price agreed upon was based on complete break-up of the charges including the prices of the RCC pipes and collars. The said pipes were manufactured in the factory of the appellant. They were cleared therefrom. The pricing of RCC pipes and collars was indicated in the project reports. They were based on the pricing guidelines fixed by Maharashtra State Sewerage and Water Board. The said Board had made rate analysis to arrive at the value of the RCC pipes and collars. Therefore, the appellant knew of the comparability of his goods with those of other manufacturers. Hence, the Collector was right in coming to the conclusion that the appellant had wilfully mis-stated and suppressed the facts in order to mislead the department. Consequently, the department was right in invoking the larger period for demand of duty under the proviso to Section 11A(1). 21. Lastly, on facts, we find that Rules 1 to 6 of the Valuation Rules, 1975 had no application. As stated above, Rule 6(b) was applicable to captive consumption. In this case, Rule 6(b) was not attracted. Therefore, the department was right in making best judgment assessment under the aforestated Rule 7 of the Valuation Rules, 1975. 22. In the case of United Glass v. Collector of Central Excise, reported in 1995 (75) ELT 209 , this Court held that Rule 7 of the Valuation Rules, 1975 was in the nature of a residuary rule, applicable only when valuation cannot be decided under other rules. In the present case, the department was, therefore, right in invoking Rule 7. 23. Mr. C.N. Sree Kumar, learned Counsel for the appellant submitted that since the classification lists and the price list were earlier approved, subsequently found to be erroneous or defective, reclassification and liability to pay duty would commence only from the date of show-cause notice and not for the period prior thereto. He further submitted that the omission to enter correct prices in the price list did not amount to contravention of Rule 173C. In support, he relied upon several authorities. 24. In the case of Universal Cables Ltd. Satna v. Union of India and Others, reported in 1977 (1) ELT page J.92, on which reliance was placed on behalf of the appellant, it was held that omission to enter correct price in the price list was not a contravention of Rule 173C within the meaning of Rule 173Q. However, on facts, the High Court found that the assessee had filed list in the proper form and in the manner prescribed under Rule 173C showing the price of the goods and, therefore, there was no contravention of that rule. In the present case, as stated above, there is a contravention of Rule 6(b) of the Valuation Rules, 1975 read with Part VI(a) of the price list proforma. Hence, the judgment in the case of Universal Cables Ltd. (supra), is not applicable to the present csae. 25. In the case of Collector of Central Excise, Baroda v. Cotspun Limited, reported in VIII (1999) SLT 368=1999 (113) ELT 353 , this Court held that the word “short-levy” in Section 11A(1) will not apply to cases where excise duty was levied on the basis of approved classification list. Learned Counsel for the appellant heavily relied upon on this authority. In our view, the said judgment has no application to the present case for two reasons : firstly, the basis of the said judgment is obliterated in view of the Amendment Act No. 10 of 2000 by which the expression “short-levy” has been redefined to include levy resulting from mistaken approval granted to the classification list. The validity of this amendment has been upheld in a recent judgment of this Court in the case of ITW Signode India Ltd. v. Collector of Central Excise, reported in I (2004) SLT 54=(2004) 3 SCC 48 , to which one of us [Dr. AR. Lakshmanan, J.] was a party. Secondly, the decision in Cotspun Limited’s (supra), was confined to interpretation of the word “short-levy” in Section 11A(1). That judgment was not concerned with the proviso to Section 11A(1). In fact, vide para 67 of the judgment of this Court in ITW Signode India Ltd. (supra), it has been observed that the extended period of limitation under the proviso can be invoked in case of positive acts of fraud, collusion, wilful mis-statement or suppression of fact on the Part of the assessee and that such a positive act must be in contradistinction to mere inaction. The present case is not a case of simple omission. It is a case of wilful mis-statement leading to under-estimation of value of goods cleared by the appellant. In the circumstances, we do not find any merit in this appeal.26. Before concluding, we may point out that under the show-cause notice, the department had alleged that the appellant had collected extra amount to the tune of Rs. 21,74,963/- in the guise of central excise duty over and above the duty actually paid to the department. The Collector found that the appellant had collected the said amount under the guise of Central Excise duty from his clients, who were billed for full quantum of duty paid whereas under the relevant notification, the appellant had paid duty at nil rate or at lower rate. Despite this finding, the Collector came to the conclusion that the said finding was based on presumptions and not on evidence and consequently, the Collector dropped the demand for Rs. 21,74,963/- made under Section 11D as not capable of being substantiated. Surprisingly, no appeal was preferred by the department to the Tribunal in respect of the demand for Rs. 21,74,963/-. Even the Collector did not make further inquiries to substantiate such demand.We are conscious of the rising revenue deficit. In several matters, we find slippages of revenue on such counts. Therefore, we expect, Mr. Mohan Parasaran, Additional Solicitor General, to bring our present judgment and order to the notice of the Finance Ministry.
### Response:
0
### Explanation:
However, the annexure to the price list indicates that the appellant had mischievously priced the said RCC pipes/collars on cost basis without estimating the profits. The Price List proforma in Part VI(b) refers to cases where comparable prices are not available and consequently, the determination of assessable value was required to be done on the basis of the total cost. The particulars required to be given by the assessee under Part VI(a) are different from the particulars under Part VI(b) of proforma price list. Under Part VI(a), the particulars are required to be given in respect of excisable goods not for sale but for captive consumption on the footing that the assessee is aware of the comparable prices. In that respect, he is required to give assessable value of the comparable goods under Part VI(a). Similarly, under Part VI(a), the assessee is required to give particulars of the difference, if any, in the material characteristics of the goods under assessment and comparable goods. On the other hand, in cases falling under Part VI(b), the assessee is required to furnish particulars of cost of production or manufacture on a separate sheet, annexed to the price list. The 3rd and the 4th column of Part VI(b) refers to computation of assessable value of goods based on the aggregate cost, together with the profits that would normally accrue to the assessee. [See: Column (5) of PartFurther, in the present case, the appellant submitted before the Collector that he had undertaken a composite contract (project) and, therefore, the prices of comparable goods were not available. However, as found by the Collector on evidence, the RCC pipes and collars were manufactured by the three units of the appellant. The contract price agreed upon was based on complete break-up of the charges including the prices of the RCC pipes and collars. The said pipes were manufactured in the factory of the appellant. They were cleared therefrom. The pricing of RCC pipes and collars was indicated in the project reports. They were based on the pricing guidelines fixed by Maharashtra State Sewerage and Water Board. The said Board had made rate analysis to arrive at the value of the RCC pipes and collars. Therefore, the appellant knew of the comparability of his goods with those of other manufacturers. Hence, the Collector was right in coming to the conclusion that the appellant had wilfully mis-stated and suppressed the facts in order to mislead the department. Consequently, the department was right in invoking the larger period for demand of duty under the proviso to Section. In the case of United Glass v. Collector of Central Excise, reported in 1995 (75) ELT 209 , this Court held that Rule 7 of the Valuation Rules, 1975 was in the nature of a residuary rule, applicable only when valuation cannot be decided under other rules. In the present case, the department was, therefore, right in invoking Rulevalidity of this amendment has been upheld in a recent judgment of this Court in the case of ITW Signode India Ltd. v. Collector of Central Excise, reported in I (2004) SLT 54=(2004) 3 SCC 48 , to which one of us [Dr. AR. Lakshmanan, J.] was a party. Secondly, the decision in Cotspun(supra), was confined to interpretation of the wordin Section 11A(1). That judgment was not concerned with the proviso to Section 11A(1). In fact, vide para 67 of the judgment of this Court in ITW Signode India Ltd. (supra), it has been observed that the extended period of limitation under the proviso can be invoked in case of positive acts of fraud, collusion, wilful mis-statement or suppression of fact on the Part of the assessee and that such a positive act must be in contradistinction to mere inaction. The present case is not a case of simple omission. It is a case of wilful mis-statement leading to under-estimation of value of goods cleared by the appellant. In the circumstances, we do not find any merit in this appeal.26. Before concluding, we may point out that under the show-cause notice, the department had alleged that the appellant had collected extra amount to the tune of Rs. 21,74,963/- in the guise of central excise duty over and above the duty actually paid to the department. The Collector found that the appellant had collected the said amount under the guise of Central Excise duty from his clients, who were billed for full quantum of duty paid whereas under the relevant notification, the appellant had paid duty at nil rate or at lower rate. Despite this finding, the Collector came to the conclusion that the said finding was based on presumptions and not on evidence and consequently, the Collector dropped the demand for Rs. 21,74,963/- made under Section 11D as not capable of being substantiated. Surprisingly, no appeal was preferred by the department to the Tribunal in respect of the demand for Rs. 21,74,963/-. Even the Collector did not make further inquiries to substantiate such demand.We are conscious of the rising revenue deficit. In several matters, we find slippages of revenue on such counts. Therefore, we expect, Mr. Mohan Parasaran, Additional Solicitor General, to bring our present judgment and order to the notice of the Finance Ministry.
|
Union Of India Vs. Salween Timber Construction (India) & Ors | be made or used in support of a claim all benefit under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to determine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading. C. J. observed: If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact, inducing the contract, of which force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy. The principle has been reiterated by this Court in Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar,(1952) 3 SCR 501=(AIR 1952 SC 119 ). In that case the appellant company insured a car belonging to respondent No. 1 and issued the policy which contained, inter alia, the following terms:- All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed by the parties. . ..If the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable. The car was lost and company through its Branch Manager disclaimed liability on three different dates. The insured did not take any action in regard to the appointment of an arbitrator until more than twelve months after the last disclaimer by the company. The case of the company was that the insured must be deemed to have abandoned his claim by virtue of the contract of insurance policy while the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no authority to disclaim the liability and it could have been disclaimed only by the resolution of the company. The company made an application under Section 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company. It was contended on its behalf that the arbitration clause had ceased to be operative and the question as to the existence and validity of the arbitration agreement was triable by the court under Section 33 of the Arbitration Act and not by the arbitrator. The argument was rejected by this Court. It was held that the point on which the parties were in dispute was a difference arising out of the policy, because recourse to the contract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them. As there was no contention raised by either of the parties that there was no contract entered into at all or that it was void ab initio the arbitrator had jurisdiction to decide the matter referred to him. In our opinion, the principle applies to the present case and it follows at the dispute between the parties falls within the scope of the arbitration clause. 6. On behalf of the appellant reliance was placed upon the decision of Court of Appeal in Piercy v. Young, (1879) 14 Ch D 200 in which it was held that the clause that any differences or disputes that may arise between the partners shall be settled by an arbitrator does not include a dispute whether the partnership has been terminated, or whether certain shares have been paid on account to the partnership or to one partner alone. In our opinion, the principle does not apply in the present case where the question presented for determination is quite different. Counsel for the appellant also referred to Turnock v. Sartoris, (1889) 43 Ch D 150. In that case the lessor was under a covenant to supply his lessee with a specific quantity of water. The lease contained a comprehensive arbitration clause. Dispute having arisen as to the supply of water, an agreement was subsequently entered into binding the lessor to take certain steps to secure the supply and varying the rights of the parties in respect of the supply. The lessee brought an action alleging that the steps agreed upon had not been taken and that he had not been fully supplied with water and asking for an action of the damages to be taken. The lessor moved to have the action stayed. It was held that the disputed matters arose partly under the agreement and were outside the arbitration clause in the lease, and trial, even if all the matters for which damages were claimed could be brought within the arbitration clause it would not be proper to refer them to an arbitration who would not have the authority to construe the agreement to determine its effect upon the lease. It is manifest that the decision has no bearing upon the question presented for determination in the present case. | 0[ds]We do not think that there is any justification for the argument put forward on behalf of the appellant. In our opinion, the claim made by the respondent firm was a claim arising out of thee test for determining the question is whether recourse to the contract by which both the parties are bound is necessary for the purpose of determining whether the claim of the respondent firm is justified or otherwise.If it is necessary to take recourse to the terms of the contract for the purpose of deciding the matter in dispute, it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide this caseIn our opinion, the principle applies to the present case and it follows at the dispute between the parties falls within the scope of the arbitration clauseIn our opinion, the principle does not apply in the present case where the question presented for determination is quite different. Counsel for the appellant also referred toTurnock v. Sartoris, (1889) 43 Ch D. In that case the lessor was under a covenant to supply his lessee with a specific quantity of water. The lease contained a comprehensive arbitration clause. Dispute having arisen as to the supply of water, an agreement was subsequently entered into binding the lessor to take certain steps to secure the supply and varying the rights of the parties in respect of the supply. The lessee brought an action alleging that the steps agreed upon had not been taken and that he had not been fully supplied with water and asking for an action of the damages to be taken. The lessor moved to have the action stayed. It was held that the disputed matters arose partly under the agreement and were outside the arbitration clause in the lease, and trial, even if all the matters for which damages were claimed could be brought within the arbitration clause it would not be proper to refer them to an arbitration who would not have the authority to construe the agreement to determine its effect upon the lease. It is manifest that the decision has no bearing upon the question presented for determination in the present case. | 0 | 3,344 | 394 | ### 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 made or used in support of a claim all benefit under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to determine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading. C. J. observed: If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact, inducing the contract, of which force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy. The principle has been reiterated by this Court in Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar,(1952) 3 SCR 501=(AIR 1952 SC 119 ). In that case the appellant company insured a car belonging to respondent No. 1 and issued the policy which contained, inter alia, the following terms:- All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed by the parties. . ..If the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall not be recoverable. The car was lost and company through its Branch Manager disclaimed liability on three different dates. The insured did not take any action in regard to the appointment of an arbitrator until more than twelve months after the last disclaimer by the company. The case of the company was that the insured must be deemed to have abandoned his claim by virtue of the contract of insurance policy while the respondent averred that there was never any valid disclaimer by the company of its liability as the Branch Manager had no authority to disclaim the liability and it could have been disclaimed only by the resolution of the company. The company made an application under Section 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would not bind the company. It was contended on its behalf that the arbitration clause had ceased to be operative and the question as to the existence and validity of the arbitration agreement was triable by the court under Section 33 of the Arbitration Act and not by the arbitrator. The argument was rejected by this Court. It was held that the point on which the parties were in dispute was a difference arising out of the policy, because recourse to the contract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them. As there was no contention raised by either of the parties that there was no contract entered into at all or that it was void ab initio the arbitrator had jurisdiction to decide the matter referred to him. In our opinion, the principle applies to the present case and it follows at the dispute between the parties falls within the scope of the arbitration clause. 6. On behalf of the appellant reliance was placed upon the decision of Court of Appeal in Piercy v. Young, (1879) 14 Ch D 200 in which it was held that the clause that any differences or disputes that may arise between the partners shall be settled by an arbitrator does not include a dispute whether the partnership has been terminated, or whether certain shares have been paid on account to the partnership or to one partner alone. In our opinion, the principle does not apply in the present case where the question presented for determination is quite different. Counsel for the appellant also referred to Turnock v. Sartoris, (1889) 43 Ch D 150. In that case the lessor was under a covenant to supply his lessee with a specific quantity of water. The lease contained a comprehensive arbitration clause. Dispute having arisen as to the supply of water, an agreement was subsequently entered into binding the lessor to take certain steps to secure the supply and varying the rights of the parties in respect of the supply. The lessee brought an action alleging that the steps agreed upon had not been taken and that he had not been fully supplied with water and asking for an action of the damages to be taken. The lessor moved to have the action stayed. It was held that the disputed matters arose partly under the agreement and were outside the arbitration clause in the lease, and trial, even if all the matters for which damages were claimed could be brought within the arbitration clause it would not be proper to refer them to an arbitration who would not have the authority to construe the agreement to determine its effect upon the lease. It is manifest that the decision has no bearing upon the question presented for determination in the present case.
### Response:
0
### Explanation:
We do not think that there is any justification for the argument put forward on behalf of the appellant. In our opinion, the claim made by the respondent firm was a claim arising out of thee test for determining the question is whether recourse to the contract by which both the parties are bound is necessary for the purpose of determining whether the claim of the respondent firm is justified or otherwise.If it is necessary to take recourse to the terms of the contract for the purpose of deciding the matter in dispute, it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide this caseIn our opinion, the principle applies to the present case and it follows at the dispute between the parties falls within the scope of the arbitration clauseIn our opinion, the principle does not apply in the present case where the question presented for determination is quite different. Counsel for the appellant also referred toTurnock v. Sartoris, (1889) 43 Ch D. In that case the lessor was under a covenant to supply his lessee with a specific quantity of water. The lease contained a comprehensive arbitration clause. Dispute having arisen as to the supply of water, an agreement was subsequently entered into binding the lessor to take certain steps to secure the supply and varying the rights of the parties in respect of the supply. The lessee brought an action alleging that the steps agreed upon had not been taken and that he had not been fully supplied with water and asking for an action of the damages to be taken. The lessor moved to have the action stayed. It was held that the disputed matters arose partly under the agreement and were outside the arbitration clause in the lease, and trial, even if all the matters for which damages were claimed could be brought within the arbitration clause it would not be proper to refer them to an arbitration who would not have the authority to construe the agreement to determine its effect upon the lease. It is manifest that the decision has no bearing upon the question presented for determination in the present case.
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Pilani Investment Corporation Ltd Vs. The Commissioner Of Income Tax (Central) | The Tribunal observed that both JC Mills and PPI Co. were public companies in which the public were substantially interested and therefore, it was not correct to say that the shares held by the two companies were controlled by a group of persons as distinguished from members of the public. The Tribunal further observed that the usual clause in the Memorandum and Articles of Association empowering the directors to decline to register a transfer of shares without assigning any reason did not mean any restriction on the transferability of shares by one holder to another. The Tribunal also found that there was nothing to show that the shares were not in fact freely transferable. The Tribunal consequently upheld the assessees contention that it was a public limited company in which the public was substantially interested and its shares were freely transferable. The provisions of Section 23-A of the Act were held to have been wrongly invoked. The order of the Income-tax Officer in this respect was consequently set aside. The question reproduced above was thereafter referred to the High Court. The High Court by a short order answered the question in the affirmative and in this connection relied upon an earlier decision of the Calcutta High Court in Commr. of Income-tax, West Bengal v. Tona Jute Co. Ltd., (1963) 48 ITR 902 (Cal) .5. In appeal before us, Mr. Sen on behalf of the appellant has contended that the decision of Calcutta High Court in (1963) 48 ITR 902 (Cal) (supra) has been impliedly overruled by a decision of this Court in the case of Shree Krishna Agency Ltd. v. Commr. of Income-tax (Central), Calcutta, 82 ITR 372 = (AIR 1972 SC 156 ). This contention, in our opinion, is well founded. In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whom it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of Section 23-A of the Act. A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corpn. Ltd. v. Commr. of Income-tax, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, (1969) 74 ITR 823 (Bom) . This Court in the case of Shree Krishna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts. This Court in that case dealt with Article 37 of the Articles of Association of the assessee company which was a public company and which provided that the directors might at any time in their absolute and uncontrollable discretion and without assigning any reason decline to register any proposed transfer of shares. It was held that in the absence of evidence to show that the directors had been exercising their power under Article 37 freely and had virtually eliminated the element of free transferability of the shares in the company, the mere existence of an article like Article 37 could not be said to affect the free transferability of the shares as contemplated by the explanation to Section 23-A of the Act.6. There is in the present case also no evidence to show that the directors had eliminated the element of transferability of shares. As such, we find that the decision of the High Court in answering the question against the assessee cannot be sustained.7. On an earlier date of hearing Mr. Ahuja, on behalf of the revenue, prayed for adjournment to ascertain whether there was any cogent material on the record to show that there was any group acting in concert which was in control of the assessee company. The adjournment was granted. When the hearing of the case was resumed thereafter. Mr. Ahuja on behalf of the department frankly stated that he had not been able to find any cogent material to show that there was any group acting in concert which was in control of the assessee company. He, however, prayed that the case be remanded to the authorities concerned for going into this question. As the matter relates to the assessment year 1952-53 and as Mr. Ahuja in spite of adjournment has not been able to find any cogent material to warrant the plea that a group acting in concert was in control of the assessee company, we are of the opinion that we should not accede to the prayer of Mr. Ahuja in this respect.The fact that two public limited companies were holding between themselves more than 75 per cent of the shares of the assessee company was not sufficient to attract Section 23-A of the Act.8. The case of Commr. of Income-tax v. Jubilee Mills Ltd., (1963) 48 ITR 9 (SC) referred to by Mr. Ahuja cannot be of much assistance to him. In the said case the Managing Agents of a company were partners of a firm who held between themselves more than 75 per cent of the voting power. It was held that as more than 75 per cent of voting power was held by a group, the company was not a company in which the public were substantially interested within the meaning of Section 23-A. In the present case as appears from the resume of facts, more than 75 per cent of shares of the assessee company are held not by a group of partners, but by two public companies in which public are substantially interested. There is also no material to show that any group acting in concert is in control of the assessee company. As such, the case of Jubilee Mills cannot be said to have any material bearing. | 1[ds]6. There is in the present case also no evidence to show that the directors had eliminated the element of transferability of shares. As such, we find that the decision of the High Court in answering the question against the assessee cannot be sustained.The case of Commr. of Income-tax v. Jubilee Mills Ltd., (1963) 48 ITR 9 (SC) referred to by Mr. Ahuja cannot be of much assistance to him. In the said case the Managing Agents of a company were partners of a firm who held between themselves more than 75 per cent of the voting power. It was held that as more than 75 per cent of voting power was held by a group, the company was not a company in which the public were substantially interested within the meaning of Section 23-A. In the present case as appears from the resume of facts, more than 75 per cent of shares of the assessee company are held not by a group of partners, but by two public companies in which public are substantially interested. There is also no material to show that any group acting in concert is in control of the assessee company. As such, the case of Jubilee Mills cannot be said to have any materialcontention, in our opinion, is well founded. In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whom it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of Sectionof the Act. A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corpn. Ltd. v. Commr. of61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of(1969) 74 ITR 823 (Bom) . This Court in the case of Shree Krishna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts. This Court in that case dealt with Article 37 of the Articles of Association of the assessee company which was a public company and which provided that the directors might at any time in their absolute and uncontrollable discretion and without assigning any reason decline to register any proposed transfer of shares. It was held that in the absence of evidence to show that the directors had been exercising their power under Article 37 freely and had virtually eliminated the element of free transferability of the shares in the company, the mere existence of an article like Article 37 could not be said to affect the free transferability of the shares as contemplated by the explanation to Sectionthe matter relates to the assessment yearand as Mr. Ahuja in spite of adjournment has not been able to find any cogent material to warrant the plea that a group acting in concert was in control of the assessee company, we are of the opinion that we should not accede to the prayer of Mr. Ahuja in this respect.The fact that two public limited companies were holding between themselves more than 75 per cent of the shares of the assessee company was not sufficient to attract Sectionof the Act. | 1 | 1,810 | 633 | ### 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 Tribunal observed that both JC Mills and PPI Co. were public companies in which the public were substantially interested and therefore, it was not correct to say that the shares held by the two companies were controlled by a group of persons as distinguished from members of the public. The Tribunal further observed that the usual clause in the Memorandum and Articles of Association empowering the directors to decline to register a transfer of shares without assigning any reason did not mean any restriction on the transferability of shares by one holder to another. The Tribunal also found that there was nothing to show that the shares were not in fact freely transferable. The Tribunal consequently upheld the assessees contention that it was a public limited company in which the public was substantially interested and its shares were freely transferable. The provisions of Section 23-A of the Act were held to have been wrongly invoked. The order of the Income-tax Officer in this respect was consequently set aside. The question reproduced above was thereafter referred to the High Court. The High Court by a short order answered the question in the affirmative and in this connection relied upon an earlier decision of the Calcutta High Court in Commr. of Income-tax, West Bengal v. Tona Jute Co. Ltd., (1963) 48 ITR 902 (Cal) .5. In appeal before us, Mr. Sen on behalf of the appellant has contended that the decision of Calcutta High Court in (1963) 48 ITR 902 (Cal) (supra) has been impliedly overruled by a decision of this Court in the case of Shree Krishna Agency Ltd. v. Commr. of Income-tax (Central), Calcutta, 82 ITR 372 = (AIR 1972 SC 156 ). This contention, in our opinion, is well founded. In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whom it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of Section 23-A of the Act. A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corpn. Ltd. v. Commr. of Income-tax, 61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, (1969) 74 ITR 823 (Bom) . This Court in the case of Shree Krishna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts. This Court in that case dealt with Article 37 of the Articles of Association of the assessee company which was a public company and which provided that the directors might at any time in their absolute and uncontrollable discretion and without assigning any reason decline to register any proposed transfer of shares. It was held that in the absence of evidence to show that the directors had been exercising their power under Article 37 freely and had virtually eliminated the element of free transferability of the shares in the company, the mere existence of an article like Article 37 could not be said to affect the free transferability of the shares as contemplated by the explanation to Section 23-A of the Act.6. There is in the present case also no evidence to show that the directors had eliminated the element of transferability of shares. As such, we find that the decision of the High Court in answering the question against the assessee cannot be sustained.7. On an earlier date of hearing Mr. Ahuja, on behalf of the revenue, prayed for adjournment to ascertain whether there was any cogent material on the record to show that there was any group acting in concert which was in control of the assessee company. The adjournment was granted. When the hearing of the case was resumed thereafter. Mr. Ahuja on behalf of the department frankly stated that he had not been able to find any cogent material to show that there was any group acting in concert which was in control of the assessee company. He, however, prayed that the case be remanded to the authorities concerned for going into this question. As the matter relates to the assessment year 1952-53 and as Mr. Ahuja in spite of adjournment has not been able to find any cogent material to warrant the plea that a group acting in concert was in control of the assessee company, we are of the opinion that we should not accede to the prayer of Mr. Ahuja in this respect.The fact that two public limited companies were holding between themselves more than 75 per cent of the shares of the assessee company was not sufficient to attract Section 23-A of the Act.8. The case of Commr. of Income-tax v. Jubilee Mills Ltd., (1963) 48 ITR 9 (SC) referred to by Mr. Ahuja cannot be of much assistance to him. In the said case the Managing Agents of a company were partners of a firm who held between themselves more than 75 per cent of the voting power. It was held that as more than 75 per cent of voting power was held by a group, the company was not a company in which the public were substantially interested within the meaning of Section 23-A. In the present case as appears from the resume of facts, more than 75 per cent of shares of the assessee company are held not by a group of partners, but by two public companies in which public are substantially interested. There is also no material to show that any group acting in concert is in control of the assessee company. As such, the case of Jubilee Mills cannot be said to have any material bearing.
### Response:
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### Explanation:
6. There is in the present case also no evidence to show that the directors had eliminated the element of transferability of shares. As such, we find that the decision of the High Court in answering the question against the assessee cannot be sustained.The case of Commr. of Income-tax v. Jubilee Mills Ltd., (1963) 48 ITR 9 (SC) referred to by Mr. Ahuja cannot be of much assistance to him. In the said case the Managing Agents of a company were partners of a firm who held between themselves more than 75 per cent of the voting power. It was held that as more than 75 per cent of voting power was held by a group, the company was not a company in which the public were substantially interested within the meaning of Section 23-A. In the present case as appears from the resume of facts, more than 75 per cent of shares of the assessee company are held not by a group of partners, but by two public companies in which public are substantially interested. There is also no material to show that any group acting in concert is in control of the assessee company. As such, the case of Jubilee Mills cannot be said to have any materialcontention, in our opinion, is well founded. In the case of Tona Jute Co. (supra) the Calcutta High Court had expressed the view that a public limited company whose directors had absolute discretion to refuse to register transfer of a share to any person whom it would, in their opinion, be undesirable in the interest of the company to admit to membership and were not obliged to give any reason for refusal to register was not a company the shares of which were freely transferable to other members of the public within the meaning of Sectionof the Act. A view contrary to that of Calcutta High Court was taken by the Madras High Court in East India Corpn. Ltd. v. Commr. of61 ITR 16 = (AIR 1967 Mad 7 ) and the Bombay High Court in Raghuvanshi Mills Ltd. v. Commr. of(1969) 74 ITR 823 (Bom) . This Court in the case of Shree Krishna Agency Ltd. (supra) approved the view taken by the Madras and Bombay High Courts. This Court in that case dealt with Article 37 of the Articles of Association of the assessee company which was a public company and which provided that the directors might at any time in their absolute and uncontrollable discretion and without assigning any reason decline to register any proposed transfer of shares. It was held that in the absence of evidence to show that the directors had been exercising their power under Article 37 freely and had virtually eliminated the element of free transferability of the shares in the company, the mere existence of an article like Article 37 could not be said to affect the free transferability of the shares as contemplated by the explanation to Sectionthe matter relates to the assessment yearand as Mr. Ahuja in spite of adjournment has not been able to find any cogent material to warrant the plea that a group acting in concert was in control of the assessee company, we are of the opinion that we should not accede to the prayer of Mr. Ahuja in this respect.The fact that two public limited companies were holding between themselves more than 75 per cent of the shares of the assessee company was not sufficient to attract Sectionof the Act.
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AMARENDRA KUMAR PANDEY Vs. UNION OF INDIA & ORS | State of Bihar, AIR 1966 SC 740 ; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509 . On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13]. 38. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016. We are conscious of the fact that these regulations do not apply to the case on hand as the order of discharge is of 2004. However, we deem fit to reproduce the relevant regulations, more particularly, 107(c) and 108 respectively, as these regulations seem to have been enacted and brought into force having regard to the ratio of the decision of this Court in the case of Veerendra Kumar Dubey (supra). Regulation 107(c) reads thus: 107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons. (a) ………… (b) ………… (c) The procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person will be as under:- (i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person concerned, subject to the exception mentioned therein, shall be served with a Show Cause Notice against the contemplated action. (ii) Preliminary enquiry. Before recommending discharge or dismissal of an individual the authority concerned will ensure that an impartial enquiry (not necessarily a Court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of hearing. (iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the Assam Rifles Units/ establishment to discharge any subordinate officer/under officer/enrolled persons of Assam Rifles. However, the power of discharge by the Commandant shall be exercised with prior approval of immediate superior officer not below Sector Commander in case of Under Officers and other enrolled person and that of Inspector General Assam Rifles in case of Subordinate Officers. (iv) After compliance of the provisions enumerated above, a show cause notice will be served on the individual affording him an opportunity to explain his case. Thereafter, the complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander. (v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders re-consider the case in the light of the individual reply to the show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice. If the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly. 108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions:- (a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual. (b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanction discharge under this para shall record reasons for ordering the discharge, or otherwise. (c) A person who has put in eighteen years of qualifying service for pension may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension, which must be specified in the discharge order. (d) Before taking the final decision to order the discharge, the person concerned shall be informed through a show cause notice that his retention in the service is considered undesirable for having incurred four or more red ink entries, thereby also calling upon him to show cause as to why he should not be discharged from the service for being considered unsuitable for the service in the Assam Rifles. The individual shall be given minimum fifteen days, after receipt of Show Cause Notice, to submit his reply. (e) After receipt of the individuals reply, if any, the case shall be put up to the authority competent to sanction the discharge alongwith recommendations of the Commandant of the unit concerned. Before passing the discharge order, the authority competent to sanction the discharge under this para may seek the advise of the Law Officer concerned. (f) An order of discharge under this para shall be passed by an officer not less than a Sector Commander in the case of Under Officer or other enrolled persons and an officer not less than Inspector General Assam Rifles/Additional Director General Assam Rifles in case of Subordinate Officers. 39. Having regard to the nature of the misconduct alleged against the appellant we are of the view that the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. We are inclined to pass such an order with a view to do substantial justice as there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. | 1[ds]22. We must first look into the decision of this Court rendered in the case of Virendra Kumar Dubey (supra). In the said case, the appellant Virendra Kumar Dubey was enrolled as an operator in the corps of Artillery of Indian Army on 27.09.1980. Having served in that capacity for nearly twelve years, he received a show cause notice pointing out that he had been awarded four Red Ink entries for various offences set out in the notice and that Virendra Kumar Dubey had become a habitual offender, thereby setting a bad example of indiscipline in the army. Virendra Kumar Dubey ultimately came to be discharged from service by an order dated 14.12.1992. He preferred a departmental appeal, which failed. He, thereafter, went to the High Court of Madhya Pradesh at Jabalpur, however, the High Court declined to entertain the petition on the ground of lack of territorial jurisdiction. He, thereafter, preferred an appeal before the Appeal Court and the writ appeal was ultimately ordered to be transferred to the Armed Forces Tribunal Regional Bench, Lucknow. The Tribunal ultimately dismissed the transferred petition which gave rise to the appeal before this Court.23. This Court in Virendra Kumar Dubey (supra) held as under:19. It is common ground that a red ink entry may be earned by an individual for overstaying leave for one week or for six months. In either case the entry is a red ink entry and would qualify for consideration in the matter of discharge. If two persons who suffer such entries are treated similarly notwithstanding the gravity of the offence being different, it would be unfair and unjust for unequals cannot be treated as equals. More importantly, a person who has suffered four such entries on a graver misconduct may escape discharge which another individual who has earned such entries for relatively lesser offences may be asked to go home prematurely. The unfairness in any such situation makes it necessary to bring in safeguards to prevent miscarriage of justice. That is precisely what the procedural safeguards purport to do in the present case.Taking the aforesaid view, this Court ultimately passed the following order:21. In the result this appeal succeeds and is hereby allowed. The order of discharge passed against the appellant is hereby set aside. Since the appellant has already crossed the age of superannuation, interest of justice will be sufficiently served if we direct that the appellant shall be treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back wages shall, however, be admissible. Benefit of continuity of service for all other purpose shall be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the date of this order. No Costs.24. In Vijay Shankar Mishra (supra), the appellant therein was enrolled in the Army Medical Corps on 23.06.1984. On 03.10.1997, a notice to show cause was issued to him to explain why he should not be discharged from service under Rule 13(3) Table (III)(v) of the Army Rules, 1954 on the ground that his conduct and service had not been found satisfactory. He ultimately came to be discharged from service. By that time, he had rendered service of thirteen years and eight months. The minimum qualifying service for earning pension under Rule 132 of the Pension Regulations for the Army ,1961 is fifteen years. He filed a writ petition before the Madhya Pradesh High Court which was dismissed on 21.11.2006. In appeal, a Division Bench directed reconsideration of the case of the appellant. Pursuant to the order of the High Court, an order was issued rejecting his claim for pension on the ground that he had not put in fifteen years of service and had been discharged for the reason that he was unlikely to become an efficient soldier. He again filed a writ petition before the Madhya Pradesh High Court which was transferred to the Armed Forces Tribunal. The Tribunal dismissed the matter. Thereafter, Mishra came before this Court. The very same argument was canvassed before this Court on behalf of Vijay Shankar Mishra that the mere fact that he had been punished while in service on nine occasions inclusive of six Red entries was no ground to exercise the power under the relevant rule for the purpose of discharge. The Court relied upon Vijay Shankar Mishra (supra) and ultimately held as under:9. In the present case, it is evident that there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including: (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26-2-2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28-12-1988 and the Circular dated 10-01-1989.10. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23-9- 2010 Vijay Shankar Mishra V. Union of India, 2010 SCC OnLine AFT 1127 and 15-9-2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this order.25. In both the aforesaid decisions, this Court took into consideration the fact that there was no application of mind by the authority to the relevant aspects which were taken into consideration while exercising the power under Rule 13 of the Rules. In both the aforesaid cases, this Court took the view that the mere fact that the Personnel had crossed the threshold of few Red Ink entries could not have been made a ground to discharge them without considering other relevant circumstances, more particularly, the nature of the violation which led to the award of the Red Ink entries. The crux of the ratio of the decision of this Court in the case on Veerendra Kumar Dubey (supra) is that the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry, howsoever, summary and a finding about the defence set up by the individual besides consideration of the factors made relevant under the procedure.26. The reliance placed by the learned Counsel appearing for the respondents on the decision of this Court in the case Satgur Singh (supra) is of no avail. It was a case in which the appellant failed to furnish any explanation of his absence from duty on seven occasions. On facts, this Court took the view that as the absence from duty was on several different occasions for which he was imposed punishment of imprisonment, the order of discharge could not be said to unjustified.29. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authoritys opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated.33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and another, AIR 1969 SC 707 , it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295 .34. Secondly, the court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. [See Farmer v. Cottons Trustees, 1915 AC 922]. Their Lordships observed:……….. in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only.[See also Muthu Gounder v. Government of Madras, (1969) 82 Mad LW 1].35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) v. Minister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395].36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481] .37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740 ; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509 . On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13].38. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016. We are conscious of the fact that these regulations do not apply to the case on hand as the order of discharge is of 2004. However, we deem fit to reproduce the relevant regulations, more particularly, 107(c) and 108 respectively, as these regulations seem to have been enacted and brought into force having regard to the ratio of the decision of this Court in the case of Veerendra Kumar Dubey (supra). Regulation 107(c) reads thus:107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons.(c) The procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person will be as under:-(i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person concerned, subject to the exception mentioned therein, shall be served with a Show Cause Notice against the contemplated action.(ii) Preliminary enquiry. Before recommending discharge or dismissal of an individual the authority concerned will ensure that an impartial enquiry (not necessarily a Court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of hearing.(iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the Assam Rifles Units/ establishment to discharge any subordinate officer/under officer/enrolled persons of Assam Rifles. However, the power of discharge by the Commandant shall be exercised with prior approval of immediate superior officer not below Sector Commander in case of Under Officers and other enrolled person and that of Inspector General Assam Rifles in case of Subordinate Officers.(iv) After compliance of the provisions enumerated above, a show cause notice will be served on the individual affording him an opportunity to explain his case. Thereafter, the complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander.(v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders re-consider the case in the light of the individual reply to the show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice. If the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly.108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions:-(a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual.(b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanction discharge under this para shall record reasons for ordering the discharge, or otherwise.(c) A person who has put in eighteen years of qualifying service for pension may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension, which must be specified in the discharge order.(d) Before taking the final decision to order the discharge, the person concerned shall be informed through a show cause notice that his retention in the service is considered undesirable for having incurred four or more red ink entries, thereby also calling upon him to show cause as to why he should not be discharged from the service for being considered unsuitable for the service in the Assam Rifles. The individual shall be given minimum fifteen days, after receipt of Show Cause Notice, to submit his reply.(e) After receipt of the individuals reply, if any, the case shall be put up to the authority competent to sanction the discharge alongwith recommendations of the Commandant of the unit concerned. Before passing the discharge order, the authority competent to sanction the discharge under this para may seek the advise of the Law Officer concerned.(f) An order of discharge under this para shall be passed by an officer not less than a Sector Commander in the case of Under Officer or other enrolled persons and an officer not less than Inspector General Assam Rifles/Additional Director General Assam Rifles in case of Subordinate Officers.39. Having regard to the nature of the misconduct alleged against the appellant we are of the view that the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. We are inclined to pass such an order with a view to do substantial justice as there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. | 1 | 6,986 | 3,235 | ### 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:
State of Bihar, AIR 1966 SC 740 ; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509 . On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13]. 38. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016. We are conscious of the fact that these regulations do not apply to the case on hand as the order of discharge is of 2004. However, we deem fit to reproduce the relevant regulations, more particularly, 107(c) and 108 respectively, as these regulations seem to have been enacted and brought into force having regard to the ratio of the decision of this Court in the case of Veerendra Kumar Dubey (supra). Regulation 107(c) reads thus: 107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons. (a) ………… (b) ………… (c) The procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person will be as under:- (i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person concerned, subject to the exception mentioned therein, shall be served with a Show Cause Notice against the contemplated action. (ii) Preliminary enquiry. Before recommending discharge or dismissal of an individual the authority concerned will ensure that an impartial enquiry (not necessarily a Court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of hearing. (iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the Assam Rifles Units/ establishment to discharge any subordinate officer/under officer/enrolled persons of Assam Rifles. However, the power of discharge by the Commandant shall be exercised with prior approval of immediate superior officer not below Sector Commander in case of Under Officers and other enrolled person and that of Inspector General Assam Rifles in case of Subordinate Officers. (iv) After compliance of the provisions enumerated above, a show cause notice will be served on the individual affording him an opportunity to explain his case. Thereafter, the complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander. (v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders re-consider the case in the light of the individual reply to the show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice. If the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly. 108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions:- (a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual. (b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanction discharge under this para shall record reasons for ordering the discharge, or otherwise. (c) A person who has put in eighteen years of qualifying service for pension may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension, which must be specified in the discharge order. (d) Before taking the final decision to order the discharge, the person concerned shall be informed through a show cause notice that his retention in the service is considered undesirable for having incurred four or more red ink entries, thereby also calling upon him to show cause as to why he should not be discharged from the service for being considered unsuitable for the service in the Assam Rifles. The individual shall be given minimum fifteen days, after receipt of Show Cause Notice, to submit his reply. (e) After receipt of the individuals reply, if any, the case shall be put up to the authority competent to sanction the discharge alongwith recommendations of the Commandant of the unit concerned. Before passing the discharge order, the authority competent to sanction the discharge under this para may seek the advise of the Law Officer concerned. (f) An order of discharge under this para shall be passed by an officer not less than a Sector Commander in the case of Under Officer or other enrolled persons and an officer not less than Inspector General Assam Rifles/Additional Director General Assam Rifles in case of Subordinate Officers. 39. Having regard to the nature of the misconduct alleged against the appellant we are of the view that the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. We are inclined to pass such an order with a view to do substantial justice as there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force.
### Response:
1
### Explanation:
order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740 ; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509 . On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13].38. At this stage, it may be apposite to refer to the Assam Rifles Regulation, 2016. We are conscious of the fact that these regulations do not apply to the case on hand as the order of discharge is of 2004. However, we deem fit to reproduce the relevant regulations, more particularly, 107(c) and 108 respectively, as these regulations seem to have been enacted and brought into force having regard to the ratio of the decision of this Court in the case of Veerendra Kumar Dubey (supra). Regulation 107(c) reads thus:107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons.(c) The procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person will be as under:-(i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person concerned, subject to the exception mentioned therein, shall be served with a Show Cause Notice against the contemplated action.(ii) Preliminary enquiry. Before recommending discharge or dismissal of an individual the authority concerned will ensure that an impartial enquiry (not necessarily a Court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of hearing.(iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the Assam Rifles Units/ establishment to discharge any subordinate officer/under officer/enrolled persons of Assam Rifles. However, the power of discharge by the Commandant shall be exercised with prior approval of immediate superior officer not below Sector Commander in case of Under Officers and other enrolled person and that of Inspector General Assam Rifles in case of Subordinate Officers.(iv) After compliance of the provisions enumerated above, a show cause notice will be served on the individual affording him an opportunity to explain his case. Thereafter, the complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander.(v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders re-consider the case in the light of the individual reply to the show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice. If the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly.108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions:-(a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual.(b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanction discharge under this para shall record reasons for ordering the discharge, or otherwise.(c) A person who has put in eighteen years of qualifying service for pension may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension, which must be specified in the discharge order.(d) Before taking the final decision to order the discharge, the person concerned shall be informed through a show cause notice that his retention in the service is considered undesirable for having incurred four or more red ink entries, thereby also calling upon him to show cause as to why he should not be discharged from the service for being considered unsuitable for the service in the Assam Rifles. The individual shall be given minimum fifteen days, after receipt of Show Cause Notice, to submit his reply.(e) After receipt of the individuals reply, if any, the case shall be put up to the authority competent to sanction the discharge alongwith recommendations of the Commandant of the unit concerned. Before passing the discharge order, the authority competent to sanction the discharge under this para may seek the advise of the Law Officer concerned.(f) An order of discharge under this para shall be passed by an officer not less than a Sector Commander in the case of Under Officer or other enrolled persons and an officer not less than Inspector General Assam Rifles/Additional Director General Assam Rifles in case of Subordinate Officers.39. Having regard to the nature of the misconduct alleged against the appellant we are of the view that the ends of justice would be met if we set aside the order of discharge and treat the appellant herein to have been in service till the time, he could be said to have completed the qualifying service for grant of pension. We are inclined to pass such an order with a view to do substantial justice as there is nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force.
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COAL INDIA LTD Vs. NAVIN KUMAR SINGH | The policy in the form of clause 11 deals with the latter. There is no express stipulation in the policy – be it clause 11 or any other official document – to even remotely suggest that on seeking inter-company transfer on personal grounds, the executive concerned would lose even his past service rendered by him in the parent unit (DCC) for all purposes. In absence of such a stipulation, the claim of the respondent could not have been rejected by the department. This proposition is reinforced from the dictum in C.N. Ponnappan (supra), which has been noted with approval in V.M. Joseph (supra). The two-Judge Bench of this Court in C.N. Ponnappan (supra), observed as follows:?4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.?(emphasis supplied)15. This view has been restated by another two-Judge Bench of this Court in V.M. Joseph (supra), in paragraph 6 which reads as follows:?6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Storekeeper on the ground that he had completed 3 years of regular service as Storekeeper on 7-6-1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Storekeeper for the period from 27-4-1971 to 6-6-1977. The appellants contended that, since the respondent had been transferred on compassionate grounds on his own request to the post of Storekeeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Storekeeper. Even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.?(emphasis supplied)16. In the present case, there is no dispute that the respondent had rendered service in E-2 Grade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority in E-2 Grade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL in E-2 Grade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service in E-2 Grade for promotion to E-3 Grade. For determining the eligibility for promotion to E-3 Grade, the service rendered by him in DCC in E-2 Grade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent in E-3 Grade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted for inter-company transfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted for inter-company transfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy for inter-company transfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service in E-2 Grade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case of inter-company transfer on personal request. As a result, these appeals must fail. | 0[ds]16. In the present case, there is no dispute that the respondent had rendered service inGrade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority inGrade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL inGrade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service inGrade for promotion toGrade. For determining the eligibility for promotion toGrade, the service rendered by him in DCC inGrade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent inGrade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted fortransfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted fortransfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy fortransfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service inGrade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case oftransfer on personal request. As a result, these appeals must fail. | 0 | 3,901 | 444 | ### 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:
The policy in the form of clause 11 deals with the latter. There is no express stipulation in the policy – be it clause 11 or any other official document – to even remotely suggest that on seeking inter-company transfer on personal grounds, the executive concerned would lose even his past service rendered by him in the parent unit (DCC) for all purposes. In absence of such a stipulation, the claim of the respondent could not have been rejected by the department. This proposition is reinforced from the dictum in C.N. Ponnappan (supra), which has been noted with approval in V.M. Joseph (supra). The two-Judge Bench of this Court in C.N. Ponnappan (supra), observed as follows:?4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.?(emphasis supplied)15. This view has been restated by another two-Judge Bench of this Court in V.M. Joseph (supra), in paragraph 6 which reads as follows:?6. From the facts set out above, it will be seen that promotion was denied to the respondent on the post of Senior Storekeeper on the ground that he had completed 3 years of regular service as Storekeeper on 7-6-1980 and, therefore, he could not be promoted earlier than 1980. In coming to this conclusion, the appellants excluded the period of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Storekeeper for the period from 27-4-1971 to 6-6-1977. The appellants contended that, since the respondent had been transferred on compassionate grounds on his own request to the post of Storekeeper at Cochin and was placed at the bottom of the seniority list, the period of 3 years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than 3 years of service as a Storekeeper. Even if an employee is transferred at his own request, from one place to another on the same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent status, cannot be excluded from consideration for determining his eligibility for promotion, though he may have been placed at the bottom of the seniority list at the transferred place. Eligibility for promotion cannot be confused with seniority as they are two different and distinct factors.?(emphasis supplied)16. In the present case, there is no dispute that the respondent had rendered service in E-2 Grade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority in E-2 Grade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL in E-2 Grade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service in E-2 Grade for promotion to E-3 Grade. For determining the eligibility for promotion to E-3 Grade, the service rendered by him in DCC in E-2 Grade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent in E-3 Grade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted for inter-company transfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted for inter-company transfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy for inter-company transfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service in E-2 Grade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case of inter-company transfer on personal request. As a result, these appeals must fail.
### Response:
0
### Explanation:
16. In the present case, there is no dispute that the respondent had rendered service inGrade on regular basis in DCC from where he was transferred to CMPDIL, on personal grounds. The service rendered by him in DCC can be and ought to be taken into account for all other purposes, other than for determination of his seniority inGrade in the new company i.e. CMPDIL. Indeed, his seniority in CMPDIL inGrade will have to be reckoned from the date of his assumption of charge on 15 th May, 1991, but that can have no bearing while determining his eligibility criterion of length of service inGrade for promotion toGrade. For determining the eligibility for promotion toGrade, the service rendered by him in DCC inGrade with effect from 4 th August, 1990, ought to be reckoned. The view so taken by the High Court commends to us. Hence, no fault can be found with the direction given by the High Court to assign notional date of promotion to the respondent inGrade with effect from 12 th November, 1993.17. As regards the Office Memorandum dated 5 th June, 1985, the same does not militate against the respondent. It is a different matter that it addresses the difficulty expressed about the denial of opportunity of promotion to the executives who opted fortransfer. On a fair reading of this Office Memorandum, it is discernible that the department has clarified the position that if the concerned executive has already completed service for a specified period including the period of service with the old company, would become entitled to be considered for promotion to the higher Grade. If so, not granting similar advantage to the executive who opted fortransfer on personal request and who incidentally enters at number one position in the seniority in the new company would be anomalous. Concededly, what is affected in terms of the policy fortransfer on personal request, is only the seniority position in the new (transferred) company – which would commence from the date of assuming office thereat. By no stretch of imagination, it can affect the length of service inGrade in the parent company. The two being distinct factors, neither the policy nor the office memorandum would be any impediment for reckoning the period of service rendered by the respondent from August, 1990 in DCC, albeit a case oftransfer on personal request. As a result, these appeals must fail.
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Kamla Kanahiyalal Khushalani Vs. State of Mahararashtra and Another | which led to such factual inferences. The grounds must be self-sufficient and self explanatory. In our view copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds."3. The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and m ust be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied upon the ratio in Icchu Devi Chorarias case (supra) extracted above. We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench. This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.4. This Court in Maneka Gandhi v . Union of India has widened the horizon of Art. 21 and added new dimensions to various features of and concept of liberty enshrined in Art. 21. In view of the decision in the aforesaid case, Art. 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art. 21 has to be reasonable, fair and just, then the words effective representation appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representat ion. If the words effective representation are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution.Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhis case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test: (1) that the protection and the guarantee afforded und er Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.5. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprive d of the right of proving his innocence in a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in anti- national activities like smuggling, etc. We are fortified in our view by a decision of this Court in Sampat Prakash v. State of Jammu &Kashmir where the following observations were made:"that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."6. It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in Art. 22(5) of the Constitution. It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention , prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention. Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard. We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers co ncerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concern- ed must be called for b y the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free. In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government. | 1[ds]In support of the petition, Mr. Jethmalani has submitted two points on which alone, in our opinion, the petition mustregards the first case, which is a decision of two Judges of this Court, it has clearly held that before an effective representation can be made by the detenu he must be supplied with the documents and materials which formed the basis of the grounds of detention. Unless this is done, there could be no question of making any representation, much less an effective representation, against the order of detention. In this connection, Bhagwati J., speaking for the Court observed asw it is obvious that when clause (5) of Article 22 and(3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be , what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bear recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3.(3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3,(3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing , not later than fifteen days from the date of detention. If this requirement of clause (5) of Article 22 read with Section 3,(3) is not satisfied, the continued detention of the detenu would be illegal and voidobservations, no doubt, are contained in paragraphs 7 and 8 of the judgment but they do not, in our opinion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward. This Court made it very clear that even apart from the interpretation placed by the Court on Art. 22(5) of the Constitution, the conclusion is inescapable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay. It is in this context that these observations were made in paragraphs 7 and 8 Moreover, this position has been made absolutely clear by a later decision of this Court in Smt. Shalini Sonis case (supra) where a Division Bench of this Court while endorsing Smt. Icchu Devis case observed as follows:matter may also be looked at from the point of view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that grounds in Article 22(5) do not mean mer e factual inferences but mean factual inferences plus factual material which led to such factual inferences. The grounds must beand self explanatory. In our view copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds.The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and m ust be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied upon the ratio in Icchu Devi Chorarias case (supra) extracted above. We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench. This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.4. This Court in Maneka Gandhi v . Union of India has widened the horizon of Art. 21 and added new dimensions to various features of and concept of liberty enshrined in Art. 21. In view of the decision in the aforesaid case, Art. 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art. 21 has to be reasonable, fair and just, then the words effective representation appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representat ion. If the words effective representation are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution.Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhis case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test: (1) that the protection and the guarantee afforded und er Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.5. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprive d of the right of proving his innocence in a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in antinational activities like smuggling, etc. We are fortified in our view by a decision of this Court in Sampat Prakash v. State of Jammu &Kashmir where the following observations werethe restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in Art. 22(5) of the Constitution. It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention , prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention. Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard. We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers co ncerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concerned must be called for b y the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free. In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government. | 1 | 2,335 | 1,949 | ### 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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which led to such factual inferences. The grounds must be self-sufficient and self explanatory. In our view copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds."3. The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and m ust be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied upon the ratio in Icchu Devi Chorarias case (supra) extracted above. We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench. This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.4. This Court in Maneka Gandhi v . Union of India has widened the horizon of Art. 21 and added new dimensions to various features of and concept of liberty enshrined in Art. 21. In view of the decision in the aforesaid case, Art. 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art. 21 has to be reasonable, fair and just, then the words effective representation appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representat ion. If the words effective representation are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution.Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhis case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test: (1) that the protection and the guarantee afforded und er Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.5. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprive d of the right of proving his innocence in a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in anti- national activities like smuggling, etc. We are fortified in our view by a decision of this Court in Sampat Prakash v. State of Jammu &Kashmir where the following observations were made:"that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."6. It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in Art. 22(5) of the Constitution. It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention , prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention. Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard. We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers co ncerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concern- ed must be called for b y the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free. In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government.
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inferences but mean factual inferences plus factual material which led to such factual inferences. The grounds must beand self explanatory. In our view copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds.The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and m ust be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied upon the ratio in Icchu Devi Chorarias case (supra) extracted above. We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench. This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.4. This Court in Maneka Gandhi v . Union of India has widened the horizon of Art. 21 and added new dimensions to various features of and concept of liberty enshrined in Art. 21. In view of the decision in the aforesaid case, Art. 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art. 21 has to be reasonable, fair and just, then the words effective representation appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representat ion. If the words effective representation are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution.Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhis case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test: (1) that the protection and the guarantee afforded und er Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.5. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprive d of the right of proving his innocence in a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in antinational activities like smuggling, etc. We are fortified in our view by a decision of this Court in Sampat Prakash v. State of Jammu &Kashmir where the following observations werethe restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in Art. 22(5) of the Constitution. It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention , prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention. Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard. We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers co ncerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concerned must be called for b y the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free. In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government.
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Commissioner Of Income-Tax, Assam Etc Vs. The Panbari Tea Co. Ltd | the rent were payable in instalments in the manner provided in the document. The parties were businessmen presumably well-versed in the working of tea estates. They must be assumed to have known the difference between the two expressions "premium and "rent", and they had designedly used those two expressions to connote two different payments. The annual rent fixed was a considerable sum of Rs 54,000/- and the premium when spread over 10 years, would work out to Rs. 22,500/- a year. There is no reason, therefore, to assume that the parties camouflaged their real intention and fixed a part of the rent in the shape of premium. The mere fact that the premium was made payable in instalments cannot obviously be decisive of the question, for that might have been to accommodate the lessee. Nor Cl. 8 of the lease deed, on which strong reliance is placed by the learned counsel for the Revenue, is a pointer to the contrary. It reads:"(1) If any of the aforesaid instalments towards the premium or annual rent shall remain unpaid for two months after becoming payable (whether formally demanded or not) or if the Lessee shall make default in payment to the Lessor any other sum or any part thereof in due dates or in observing or performing any of the covenants, conditions or stipulations hereinbefore contained and on the part of the Lessee to be paid observed and performed or if the Lessees firm is dissolved except for reconstruction or if any of the partners of the Lessee is adjudicated insolvent then and in any such cases it shall be lawful for the Lessor immediately or at any time or times thereafter upon the demised Tea Estates and premises or any part thereof in the name of the whole to re-enter and thereupon this demise shall absolutely determine but without prejudice to the rights of the Lessor or damages or compensation in respect of any breach of lease covenants herein contained and all other rights and remedies including the right to recover the balance of the instalment of unpaid premium or rent payable in that particular year." The argument is that in the case of default contemplated in this clause it shall be lawfull for the lessor to re-enter and, in that event in terms of Cl. 8 he will be entitled only to recover the balance of the instalment of unpaid premium and not the entire balance of the premium. This construction, though appears to be plausible at first sight, really ignores the main terms of the lease. The default clause is pressed into service to destroy the main term of the lease. Under Cl. 1 of the lease deed the sum of Rs. 2,25,000,/- is the consideration by way of premium to be paid by the lessees to the lessor. Under Cl.4 thereof the said entire premium has to be paid in instalments; under Cl.8 the lessor has the option to terminate the lease and re-enter the premises in the circumstances mentioned therein without prejudice to all his rights under the document. One of his rights is to recover the premium in instalments. The fact that one of the rights saved is his right to recover the balance of the instalment of unpaid premium cannot possibly deprive him of all his other rights which are also expressly saved thereunder. The drafting of the clause is not artistic and is rather confused; but in the context of the other clauses it cannot be so construed as to override, or come into conflict with, the main terms of the lease deed. 7. Thirdly, it was contended that the income the lessor was getting under the lease after 1950, i.e., after the execution of the lease deed, viz.,. the total of the instalments of premium and rent, was not higher than the profits he was getting before the lease and that was an indication that what was rent really was split up into premium and rent for ulterior purposes. This argument is based upon the following data collected from the published accounts of the assessee-company: Year ended Profit Depreciation Net Profit Dividend (tax free) (1) (2) (3) (4) (5) Rs. Rs. Rs.31st March 1947 60,186 8,665 51,521 9% 31st March 1948 33,118 7,872 23,246 9% 31st March 1949 31,581 7,475 24,l06 6% 31st March 1950 47,734 17,868 29,886 12% 31st March 1951 71,888 17,726 54,162 6% 31st March 1952 33,213 15,527 17,686 6% 31st March 1953 69,550 15,410 54,140 6% 8. In the accounts of the year to 31st March 1952 there are the following three items of expenditure,- Transit charges ... ... Rs. 10,605 Legal Expenses ... ... Rs. 7,518 Gratuity to Managing Director ... ... Rs. 10,000 Rs. 28, 123 Before comparing the figures given for the two periods, i.e., the period before March 1950 and the period thereafter, it is necessary to add back the said three items of expenditure totalling Rs. 28,123/- to the net profit of the year ended with 31st March, 1952; if they, were added, instead of Rs. 17,686/-, the profit would be Rs. 45,809/-. A comparative study of the said figures discloses a higher return in the second period than during the earlier period. But an attempt is made to show that the figures of the later period include other items and if they are deducted the net profit would be comparable with that in the earlier period, but there is no agreed data for this attempt and it is not possible on the material placed before us to scrutinize the figure;. In the absence of the relevant material it is not possible to accept the argument built upon the said figures. 9. The result is that there is no material placed before us, either direct or circumstantial, to displace the description given in the lease deed to the said amounts as premium and to hold that they are not in fact premium but only rent. Indeed, the circumstances mentioned supra confirm the said description. | 1[ds]Before comparing the figures given for the two periods, i.e., the period before March 1950 and the period thereafter, it is necessary to add back the said three items of expenditure totalling Rs. 28,123/- to the net profit of the year ended with 31st March, 1952; if they, were added, instead of Rs. 17,686/-, the profit would be Rs. 45,809/-. A comparative study of the said figures discloses a higher return in the second period than during the earlier period. But an attempt is made to show that the figures of the later period include other items and if they are deducted the net profit would be comparable with that in the earlier period, but there is no agreed data for this attempt and it is not possible on the material placed before us to scrutinize the figure;. In the absence of the relevant material it is not possible to accept the argument built upon the said figures9. The result is that there is no material placed before us, either direct or circumstantial, to displace the description given in the lease deed to the said amounts as premium and to hold that they are not in fact premium but only rent. Indeed, the circumstances mentioned supra confirm the said description. | 1 | 2,627 | 236 | ### Instruction:
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the rent were payable in instalments in the manner provided in the document. The parties were businessmen presumably well-versed in the working of tea estates. They must be assumed to have known the difference between the two expressions "premium and "rent", and they had designedly used those two expressions to connote two different payments. The annual rent fixed was a considerable sum of Rs 54,000/- and the premium when spread over 10 years, would work out to Rs. 22,500/- a year. There is no reason, therefore, to assume that the parties camouflaged their real intention and fixed a part of the rent in the shape of premium. The mere fact that the premium was made payable in instalments cannot obviously be decisive of the question, for that might have been to accommodate the lessee. Nor Cl. 8 of the lease deed, on which strong reliance is placed by the learned counsel for the Revenue, is a pointer to the contrary. It reads:"(1) If any of the aforesaid instalments towards the premium or annual rent shall remain unpaid for two months after becoming payable (whether formally demanded or not) or if the Lessee shall make default in payment to the Lessor any other sum or any part thereof in due dates or in observing or performing any of the covenants, conditions or stipulations hereinbefore contained and on the part of the Lessee to be paid observed and performed or if the Lessees firm is dissolved except for reconstruction or if any of the partners of the Lessee is adjudicated insolvent then and in any such cases it shall be lawful for the Lessor immediately or at any time or times thereafter upon the demised Tea Estates and premises or any part thereof in the name of the whole to re-enter and thereupon this demise shall absolutely determine but without prejudice to the rights of the Lessor or damages or compensation in respect of any breach of lease covenants herein contained and all other rights and remedies including the right to recover the balance of the instalment of unpaid premium or rent payable in that particular year." The argument is that in the case of default contemplated in this clause it shall be lawfull for the lessor to re-enter and, in that event in terms of Cl. 8 he will be entitled only to recover the balance of the instalment of unpaid premium and not the entire balance of the premium. This construction, though appears to be plausible at first sight, really ignores the main terms of the lease. The default clause is pressed into service to destroy the main term of the lease. Under Cl. 1 of the lease deed the sum of Rs. 2,25,000,/- is the consideration by way of premium to be paid by the lessees to the lessor. Under Cl.4 thereof the said entire premium has to be paid in instalments; under Cl.8 the lessor has the option to terminate the lease and re-enter the premises in the circumstances mentioned therein without prejudice to all his rights under the document. One of his rights is to recover the premium in instalments. The fact that one of the rights saved is his right to recover the balance of the instalment of unpaid premium cannot possibly deprive him of all his other rights which are also expressly saved thereunder. The drafting of the clause is not artistic and is rather confused; but in the context of the other clauses it cannot be so construed as to override, or come into conflict with, the main terms of the lease deed. 7. Thirdly, it was contended that the income the lessor was getting under the lease after 1950, i.e., after the execution of the lease deed, viz.,. the total of the instalments of premium and rent, was not higher than the profits he was getting before the lease and that was an indication that what was rent really was split up into premium and rent for ulterior purposes. This argument is based upon the following data collected from the published accounts of the assessee-company: Year ended Profit Depreciation Net Profit Dividend (tax free) (1) (2) (3) (4) (5) Rs. Rs. Rs.31st March 1947 60,186 8,665 51,521 9% 31st March 1948 33,118 7,872 23,246 9% 31st March 1949 31,581 7,475 24,l06 6% 31st March 1950 47,734 17,868 29,886 12% 31st March 1951 71,888 17,726 54,162 6% 31st March 1952 33,213 15,527 17,686 6% 31st March 1953 69,550 15,410 54,140 6% 8. In the accounts of the year to 31st March 1952 there are the following three items of expenditure,- Transit charges ... ... Rs. 10,605 Legal Expenses ... ... Rs. 7,518 Gratuity to Managing Director ... ... Rs. 10,000 Rs. 28, 123 Before comparing the figures given for the two periods, i.e., the period before March 1950 and the period thereafter, it is necessary to add back the said three items of expenditure totalling Rs. 28,123/- to the net profit of the year ended with 31st March, 1952; if they, were added, instead of Rs. 17,686/-, the profit would be Rs. 45,809/-. A comparative study of the said figures discloses a higher return in the second period than during the earlier period. But an attempt is made to show that the figures of the later period include other items and if they are deducted the net profit would be comparable with that in the earlier period, but there is no agreed data for this attempt and it is not possible on the material placed before us to scrutinize the figure;. In the absence of the relevant material it is not possible to accept the argument built upon the said figures. 9. The result is that there is no material placed before us, either direct or circumstantial, to displace the description given in the lease deed to the said amounts as premium and to hold that they are not in fact premium but only rent. Indeed, the circumstances mentioned supra confirm the said description.
### Response:
1
### Explanation:
Before comparing the figures given for the two periods, i.e., the period before March 1950 and the period thereafter, it is necessary to add back the said three items of expenditure totalling Rs. 28,123/- to the net profit of the year ended with 31st March, 1952; if they, were added, instead of Rs. 17,686/-, the profit would be Rs. 45,809/-. A comparative study of the said figures discloses a higher return in the second period than during the earlier period. But an attempt is made to show that the figures of the later period include other items and if they are deducted the net profit would be comparable with that in the earlier period, but there is no agreed data for this attempt and it is not possible on the material placed before us to scrutinize the figure;. In the absence of the relevant material it is not possible to accept the argument built upon the said figures9. The result is that there is no material placed before us, either direct or circumstantial, to displace the description given in the lease deed to the said amounts as premium and to hold that they are not in fact premium but only rent. Indeed, the circumstances mentioned supra confirm the said description.
|
Bharat Sanchar Nigam Ltd. Vs. Bpl Mobile Cellular Ltd. | private and charges for non-exchange lines. The Tribunal which is an expert body, opined : "12. We find grey areas in the submissions made by both the sides. Firstly, it is not at all clear whether the lease arrangements entered into by the petitioner with the respondents were covered under Rule 434 Section IX or section X of Indian Telegraph Act. Rule 434 section IX and Section X deal with charges for Private Wires and Non-Exchange Lines, respectively. These two terms, viz. "Private Wires" and "Non-Exchange Lines", have been defined under the Indian Telegraph Rules as under :"Rule 2(II) : Private Wires are those which connect two subscribers through a departmental exchange system whether a private relay set is installed at the exchange or not and are not connected to the local telephone system and to the general trunk net work;*****************Rule 2(33a) : Non-exchange lines are those which connect two subscribers without any departmental exchange intervening."From the application forms annexed by the petitioner to its petition, it may be seen that what was asked for was Data Circuit. Such circuits were more in the nature of long- distance telephone circuits between two cities as may be evidenced by the following list of leased lines obtained by the petitioner which have been listed in the petition :Lease Circuits Obtained in1. Cochin - Thiruvananthapuram January 19972. Cochin - Thiruvananthapuram July 19973. Cochin - Calicut January 19974. Cochin - Calicut July 19975. Cochin - Thrissur February 19976. Cochin - Thrissur August 19977. Thiruvananthapuram - Kollam November 19978. Calicum - Kannur November 19979. Cochin - Kottayam November 199710. Cochin - Kollam January 199811.Cochin - Kannur February 199812. Cochin - Thiruvalla May 199813.Cochin - Palakkad May 199814.Thrissur - Kunnamkulam June 199815. Thrissur - Palakkad June 1998 The leased data circuits taken by the petitioner were between two exchanges of DoT/BSNL at two different cities. Thus, it is difficult to accept the contention that the circuits leased between two exchanges of BSNL located in two different cities were covered within the ambits of "Private Wire" or "Non-exchange Lines" as defined under Indian Telegraph Rules. Consequently the applicability of Rule 434 in the instant is not warranted.12A. We have taken note of the contention of Respondent No.1 that by its order dated 17th June, 1988 the minimum period of hire for 2 Mbps lines was 3 years and the hirer was required to pay for the entire period in case of premature surrender. The relevant question is whether this was made known to the petitioner or the petitioner was expected to have a knowledge of this. From the copy of the Order No.4-31/86-R(Pt.) dated 17th June, 1988 placed on record by Respondent No.1, it is seen that it is a Circular issued by one Shri D.V.B. Rao, Assistant Director General (Costing), Rates Section, Department of Telecommunicatiosn and addressed to All Heads of Telecom Circles; All Heads of Metro, Major and Minor Telephone Districts; General Manager, MTNL, Bombay/New Delhi. Copies were endorsed to a host of officials, all belonging to the Department of Telecommunications. It was, therefore, basically an office circular for internal use and not a document released to the general public.XXX XXX XXX15. As a result of all that is stated in the earlier paragraphs we hold that it has not been conclusively established that the contracts for leased data circuits between the petitioner and the respondents were covered under Rule 434 of the Indian Telegraph Rules and that the minimum guarantee period and penalties for premature surrender, as indicated in Rule 434 were applicable to these contracts. We also hold that the petitioner had no reason whatsoever for the non-observance of Rule 475-A of Indian Telegraph Rules in view of its categorical undertaking to abide by the provisions of these Rules." 38. Prima facie, the proviso appended to Section 9 and Section 10 providing for a minimum guaranteed period of three years does not appear to have any application. The authorities of the DOT also did not think so. They proceeded on the basis of and having regard to the phraseology used in Rules 478 and 496 that minimum period is only three months. 39. Applicability of minimum guaranteed period of three years was sought to be enforced from a circular letter dated 17.6.1988 only. The effect of the said circular letter has been discussed hereinbefore. We have furthermore noticed the vacillating stand taken by the appellants herein in the case of C.G. Faxemail. They sought to charge the double of the amount as prescribed in the contract on the basis that the service which is being provided by them is close user group service. TRAI held it not to be so. TRAI, as noticed hereinbefore, relied upon two circulars only, namely 13.7.1985 and 22.11.1996, the latter one being after the contract was entered into. TDSAT, apart from holding that the said circular letters are internal documents, did not deal with the internet service providers. 40. It thereafter relied upon the circular letter dated 15.4.1998 and not on the circular letter dated 3.6.1995, the former having no application to a contract which was entered into prior thereto. Even the said letter provided for three months minimum guarantee period for long distance lease lines. Even DOT raised three months demand notice on or about 26.11.1998. 41. Yet again, the DOT in its letter dated 13/14.1.1999 confirmed that paragraph A of the circular letter dated 26.11.1998 referred to Rule 496. The parties were not ad idem as to whether these circuits being long distance lease lines would be governed by which circular. Furthermore, the authorities of the DOT, assuming that they are applicable, despite the circular letters, consciously entered into contract for one years period on which the parties had acted thereupon. 42. A finding of fact has been arrived at by TDSAT that the said circular letters are not applicable. Rule 434 was not applicable. Appeal to this Court, in terms of Section 18 of the Act is maintainable only on a substantial question of law. | 0[ds]22. For the purpose of determining the questions involved in the present appeals, we may ignore the fact that pursuant to or in furtherance of the negotiations held by and between the parties, the respondents imported equipments but, for one reason or the other, as noticed hereinbefore, the same could not be installed. However, the DOT in its letter dated 30.09.1996 categorically stated that it could put up its own equipments under contribution work basis, which would mean that the charges would be on the basis of capital cost. In view of the aforementioned representations made by the DOT, the respondents had agreed to take the equipment on rent and guarantee basis which was itself calculated on capital costs.23. We are, furthermore, not concerned with the tariff order issued by TRAI. What, however, may be noticed is that even the tariff order provides for a lower tariff than the agreed rate.25. In view of the aforementioned law laid down by this Court, there cannot be any doubt whatsoever that the circular letters cannot ipso facto be given effect to unless they become part of the contract. We will assume that some of the respondents knew thereabout. We will assume that in one of the meetings, they referred to the said circulars. But, that would not mean that they are bound thereby. Apart from the fact that a finding of fact has been arrived at by the TDSAT that the said circular letters were not within the knowledge of the respondents herein, even assuming that they were so, they would not prevail over the public documents which are the brochures, commercial information and the tariffs.26. If the parties were ad idem as regards terms of the contract, any change in the tariff could not have been made unilaterally. Any novation in the contract was required to be done on the same terms as are required for entering into a valid and concluded contract. Such an exercise having not been resorted to, we are of the opinion that no interference with the impugned judgment is called for.27. For invoking clauses 4.1 and 19.5 of the licence agreement, we may notice that the word `prescribed is not defined. It has not been defined even in the Indian Telegraph Act. It has not been defined in the licence. The said provision unlike clause 18.14 does not use the words `from time to time. A contract entered into by the parties, it will bear a repetition to state, must be certain. It must conform to the provisions of the Indian Contract Act. Ordinarily, the word `prescribed would mean prescribed by Rules. Section 7(2)(ee) of the Indian Telegraph Act provides for the Rule making power for the purpose of laying down the tariff. We may not be understood to be laying down a law that in absence of any statutory rule framed under the Indian Telegraph Act, no contract can be entered into. In absence of any statutory Rule governing the field, the parties would be at liberty to enter into any contract containing such terms and conditions as regards the rate or the period stipulating such terms as the case may be. The matter might have been different if the parties had entered into an agreement with their eyes wide open that the circular letter shall form part of the contract. They might have also been held bound if they accepted the new rates or the periods either expressly or sub silentio. When on the basis of terms of the contract, different rates can be prescribed, the same must be expressly stated. When the word `prescribed is not defined, the same, in our opinion, would mean that prescribed in accordance with law and not otherwise.The respondent had two options. They were asked to choose one. Thus, a representation was made that they would be entitled to obtain lease the equipments (resources) at an R&G basis. Payments have been made on that basis. The question which would arise for consideration is as to whether the basis of making a demand itself can be changed. The answer to the said question, in our opinion, must be rendered in negative.In the instant case, the resources to be leased out were subject to agreement. The terms were to be mutually agreed upon. The terms of contract, in terms of Section 8 of the Contract Act, fructified into a concluded contract. Once a concluded contract was arrived at, the parties were bound thereby. If they were to alter or modify the terms thereof, it was required to be done either by express agreement or by necessary implication which would negate the application of the doctrine of `acceptance sub silentio. But, there is nothing on record to show that such a course of action was taken. The respondents at no point of time were made known either about the internal circulars or about the letters issued from time to time not only changing the tariff but also the basis thereof.31. We will assume that the contention of the learned Additional Solicitor General that the internal circulars are issued for their application by the local officers. If they have committed a mistake, the same could be rectified.A finding of fact has been arrived at by TDSAT that the said circular letters are not applicable. Rule 434 was not applicable. Appeal to this Court, in terms of Section 18 of the Act is maintainable only on a substantial question of law. | 0 | 12,416 | 1,014 | ### 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:
private and charges for non-exchange lines. The Tribunal which is an expert body, opined : "12. We find grey areas in the submissions made by both the sides. Firstly, it is not at all clear whether the lease arrangements entered into by the petitioner with the respondents were covered under Rule 434 Section IX or section X of Indian Telegraph Act. Rule 434 section IX and Section X deal with charges for Private Wires and Non-Exchange Lines, respectively. These two terms, viz. "Private Wires" and "Non-Exchange Lines", have been defined under the Indian Telegraph Rules as under :"Rule 2(II) : Private Wires are those which connect two subscribers through a departmental exchange system whether a private relay set is installed at the exchange or not and are not connected to the local telephone system and to the general trunk net work;*****************Rule 2(33a) : Non-exchange lines are those which connect two subscribers without any departmental exchange intervening."From the application forms annexed by the petitioner to its petition, it may be seen that what was asked for was Data Circuit. Such circuits were more in the nature of long- distance telephone circuits between two cities as may be evidenced by the following list of leased lines obtained by the petitioner which have been listed in the petition :Lease Circuits Obtained in1. Cochin - Thiruvananthapuram January 19972. Cochin - Thiruvananthapuram July 19973. Cochin - Calicut January 19974. Cochin - Calicut July 19975. Cochin - Thrissur February 19976. Cochin - Thrissur August 19977. Thiruvananthapuram - Kollam November 19978. Calicum - Kannur November 19979. Cochin - Kottayam November 199710. Cochin - Kollam January 199811.Cochin - Kannur February 199812. Cochin - Thiruvalla May 199813.Cochin - Palakkad May 199814.Thrissur - Kunnamkulam June 199815. Thrissur - Palakkad June 1998 The leased data circuits taken by the petitioner were between two exchanges of DoT/BSNL at two different cities. Thus, it is difficult to accept the contention that the circuits leased between two exchanges of BSNL located in two different cities were covered within the ambits of "Private Wire" or "Non-exchange Lines" as defined under Indian Telegraph Rules. Consequently the applicability of Rule 434 in the instant is not warranted.12A. We have taken note of the contention of Respondent No.1 that by its order dated 17th June, 1988 the minimum period of hire for 2 Mbps lines was 3 years and the hirer was required to pay for the entire period in case of premature surrender. The relevant question is whether this was made known to the petitioner or the petitioner was expected to have a knowledge of this. From the copy of the Order No.4-31/86-R(Pt.) dated 17th June, 1988 placed on record by Respondent No.1, it is seen that it is a Circular issued by one Shri D.V.B. Rao, Assistant Director General (Costing), Rates Section, Department of Telecommunicatiosn and addressed to All Heads of Telecom Circles; All Heads of Metro, Major and Minor Telephone Districts; General Manager, MTNL, Bombay/New Delhi. Copies were endorsed to a host of officials, all belonging to the Department of Telecommunications. It was, therefore, basically an office circular for internal use and not a document released to the general public.XXX XXX XXX15. As a result of all that is stated in the earlier paragraphs we hold that it has not been conclusively established that the contracts for leased data circuits between the petitioner and the respondents were covered under Rule 434 of the Indian Telegraph Rules and that the minimum guarantee period and penalties for premature surrender, as indicated in Rule 434 were applicable to these contracts. We also hold that the petitioner had no reason whatsoever for the non-observance of Rule 475-A of Indian Telegraph Rules in view of its categorical undertaking to abide by the provisions of these Rules." 38. Prima facie, the proviso appended to Section 9 and Section 10 providing for a minimum guaranteed period of three years does not appear to have any application. The authorities of the DOT also did not think so. They proceeded on the basis of and having regard to the phraseology used in Rules 478 and 496 that minimum period is only three months. 39. Applicability of minimum guaranteed period of three years was sought to be enforced from a circular letter dated 17.6.1988 only. The effect of the said circular letter has been discussed hereinbefore. We have furthermore noticed the vacillating stand taken by the appellants herein in the case of C.G. Faxemail. They sought to charge the double of the amount as prescribed in the contract on the basis that the service which is being provided by them is close user group service. TRAI held it not to be so. TRAI, as noticed hereinbefore, relied upon two circulars only, namely 13.7.1985 and 22.11.1996, the latter one being after the contract was entered into. TDSAT, apart from holding that the said circular letters are internal documents, did not deal with the internet service providers. 40. It thereafter relied upon the circular letter dated 15.4.1998 and not on the circular letter dated 3.6.1995, the former having no application to a contract which was entered into prior thereto. Even the said letter provided for three months minimum guarantee period for long distance lease lines. Even DOT raised three months demand notice on or about 26.11.1998. 41. Yet again, the DOT in its letter dated 13/14.1.1999 confirmed that paragraph A of the circular letter dated 26.11.1998 referred to Rule 496. The parties were not ad idem as to whether these circuits being long distance lease lines would be governed by which circular. Furthermore, the authorities of the DOT, assuming that they are applicable, despite the circular letters, consciously entered into contract for one years period on which the parties had acted thereupon. 42. A finding of fact has been arrived at by TDSAT that the said circular letters are not applicable. Rule 434 was not applicable. Appeal to this Court, in terms of Section 18 of the Act is maintainable only on a substantial question of law.
### Response:
0
### Explanation:
22. For the purpose of determining the questions involved in the present appeals, we may ignore the fact that pursuant to or in furtherance of the negotiations held by and between the parties, the respondents imported equipments but, for one reason or the other, as noticed hereinbefore, the same could not be installed. However, the DOT in its letter dated 30.09.1996 categorically stated that it could put up its own equipments under contribution work basis, which would mean that the charges would be on the basis of capital cost. In view of the aforementioned representations made by the DOT, the respondents had agreed to take the equipment on rent and guarantee basis which was itself calculated on capital costs.23. We are, furthermore, not concerned with the tariff order issued by TRAI. What, however, may be noticed is that even the tariff order provides for a lower tariff than the agreed rate.25. In view of the aforementioned law laid down by this Court, there cannot be any doubt whatsoever that the circular letters cannot ipso facto be given effect to unless they become part of the contract. We will assume that some of the respondents knew thereabout. We will assume that in one of the meetings, they referred to the said circulars. But, that would not mean that they are bound thereby. Apart from the fact that a finding of fact has been arrived at by the TDSAT that the said circular letters were not within the knowledge of the respondents herein, even assuming that they were so, they would not prevail over the public documents which are the brochures, commercial information and the tariffs.26. If the parties were ad idem as regards terms of the contract, any change in the tariff could not have been made unilaterally. Any novation in the contract was required to be done on the same terms as are required for entering into a valid and concluded contract. Such an exercise having not been resorted to, we are of the opinion that no interference with the impugned judgment is called for.27. For invoking clauses 4.1 and 19.5 of the licence agreement, we may notice that the word `prescribed is not defined. It has not been defined even in the Indian Telegraph Act. It has not been defined in the licence. The said provision unlike clause 18.14 does not use the words `from time to time. A contract entered into by the parties, it will bear a repetition to state, must be certain. It must conform to the provisions of the Indian Contract Act. Ordinarily, the word `prescribed would mean prescribed by Rules. Section 7(2)(ee) of the Indian Telegraph Act provides for the Rule making power for the purpose of laying down the tariff. We may not be understood to be laying down a law that in absence of any statutory rule framed under the Indian Telegraph Act, no contract can be entered into. In absence of any statutory Rule governing the field, the parties would be at liberty to enter into any contract containing such terms and conditions as regards the rate or the period stipulating such terms as the case may be. The matter might have been different if the parties had entered into an agreement with their eyes wide open that the circular letter shall form part of the contract. They might have also been held bound if they accepted the new rates or the periods either expressly or sub silentio. When on the basis of terms of the contract, different rates can be prescribed, the same must be expressly stated. When the word `prescribed is not defined, the same, in our opinion, would mean that prescribed in accordance with law and not otherwise.The respondent had two options. They were asked to choose one. Thus, a representation was made that they would be entitled to obtain lease the equipments (resources) at an R&G basis. Payments have been made on that basis. The question which would arise for consideration is as to whether the basis of making a demand itself can be changed. The answer to the said question, in our opinion, must be rendered in negative.In the instant case, the resources to be leased out were subject to agreement. The terms were to be mutually agreed upon. The terms of contract, in terms of Section 8 of the Contract Act, fructified into a concluded contract. Once a concluded contract was arrived at, the parties were bound thereby. If they were to alter or modify the terms thereof, it was required to be done either by express agreement or by necessary implication which would negate the application of the doctrine of `acceptance sub silentio. But, there is nothing on record to show that such a course of action was taken. The respondents at no point of time were made known either about the internal circulars or about the letters issued from time to time not only changing the tariff but also the basis thereof.31. We will assume that the contention of the learned Additional Solicitor General that the internal circulars are issued for their application by the local officers. If they have committed a mistake, the same could be rectified.A finding of fact has been arrived at by TDSAT that the said circular letters are not applicable. Rule 434 was not applicable. Appeal to this Court, in terms of Section 18 of the Act is maintainable only on a substantial question of law.
|
UMC TECHNOLOGIES PRIVATE LIMITED Vs. FOOD CORPORATION OF INDIA AND ANR | We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement. 21. Thus, from the above discussion, a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting. 22. To test whether the above stipulations as to the contents of the show cause have been satisfied in the present case, it may be useful to extract the relevant portion of the said show cause notice dated 10.04.2018 wherein the Corporation specified the actions that it might adopt against the appellant: Whereas, the above cited clauses are only indicative & not exhaustive. Whereas, it is quite evident from the sequence of events that M/s U.MC Technologies Pvt. Ltd, Kolkata has violated the condition/clauses governing the contract due to its abject failure & clear negligence in ensuring smooth conduct of examination. As it was the sole responsibility of the agency to keep the process of preparation & distribution of question paper and conducting of exam in highly confidential manner, the apparent leak point towards, acts of omission & commission on the part of M/S UMC Technologies Ltd. Kolkata. Whereas, M/S UMC Technologies Pvt. Ltd. Kolkata is hereby provided an opportunity to explain its Position in the matter before suitable decision is taken as per T&C of MTF. The explanation if any should reach this office within a period of 15 days of receipt of this notice falling which appropriate decision shall be taken. ex-parte as per terms and conditions mentioned in MTF without prejudice to any other legal rights & remedies available with the corporation. 23. It is also necessary to highlight the order dated 09.01.2019 passed by the Corporation in pursuant to the aforesaid notice, the operative portion of which reads as under: After having examined the entire matter in detail, the shortcomings/negligence on the part of M/s UMC Technologies Pvt. Ltd. stands established beyond any reasonable doubt. Now, therefore in accordance with clause 42.1(II) of the governing MTF, the competent authority hereby terminates the contract at the risk and cost of the Agency. As per Clause No. 10.1 & 10.2 the said M/s UMC Technologies Pvt. Ltd. is hereby debarred from participating in any future tenders of the corporation for a period of Five years. Further, the Security Deposit too stands forfeited as per clause 15.6 of MTF. This order is issued without prejudice to any other legal remedy available with FCI to safeguard its interest. 24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the Instruction to Bidders, which were part of the Corporations Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellants said belief was well-founded, there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. 25. The mere existence of a clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporations notice is completely silent about blacklisting and as such, it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the appellant could have filed a suitable reply for the same. Therefore, we are of the opinion that the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting. In our view, the order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law. As a result, the consequent blacklisting order dated 09.01.2019 cannot be sustained. 26. In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice, it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case, we deem it appropriate not to remit the matter to the Corporation for fresh consideration. | 1[ds]12. We have given our anxious consideration to the submissions made by the learned counsel at the Bar on behalf of the parties. In our opinion, the validity of the impugned order of the Corporation dated 09.01.2019, so far as the blacklisting of the appellant thereunder is concerned, would in turn be determined by the validity of the underlying show cause notice dated 10.04.2018 issued by the Corporation to the appellant.13. At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. This Court in Nasir Ahmad v. Assistant Custodian General, Evacuee Property, Lucknow and Anr.,(1980) 3 SCC 1. has held that it is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard.15. In the present case as well, the appellant has submitted that serious prejudice has been caused to it due to the Corporations order of blacklisting as several other government corporations have now terminated their contracts with the appellant and/or prevented the appellant from participating in future tenders even though the impugned blacklisting order was, in fact, limited to the Corporations Madhya Pradesh regional office. This domino effect, which can effectively lead to the civil death of a person, shows that the consequences of blacklisting travel far beyond the dealings of the blacklisted person with one particular government corporation and in view thereof, this Court has consistently prescribed strict adherence to principles of natural justice whenever an entity is sought to be blacklisted.16. The severity of the effects of blacklisting and the resultant need for strict observance of the principles of natural justice before passing an order of blacklisting were highlighted by this Court in Erusian Equipment & Chemicals Ltd. v. State of West Bengal2 in the following terms:12. … The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality.15. … The blacklisting order involves civil consequences. It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The black lists are instruments of coercion.20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.19. In light of the above decisions, it is clear that a prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. In these cases, furnishing of a valid show cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.20. In the present case, the factum of service of the show cause notice dated 10.04.2018 by the Corporation upon the appellant is not in dispute. Rather, what Shri Banerji has argued on behalf of the appellant is that the contents of the said show cause notice were not such that the appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation. Gorkha Security Services (supra) is a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing/contemplating such an action in the show-cause notice. For this purpose, this Court laid down the below guidelines as to the contents of a show cause notice pursuant to which adverse action such as blacklisting may be adopted:Contents of the show-cause notice21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.22. The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this agent, However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order fulfil the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz:(i) The material/grounds to be stated which according to the department necessitates an action;(ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit.We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement.21. Thus, from the above discussion, a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the Instruction to Bidders, which were part of the Corporations Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellants said belief was well-founded, there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same.25. The mere existence of a clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporations notice is completely silent about blacklisting and as such, it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the appellant could have filed a suitable reply for the same. Therefore, we are of the opinion that the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting. In our view, the order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law. As a result, the consequent blacklisting order dated 09.01.2019 cannot be sustained.26. In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice, it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case, we deem it appropriate not to remit the matter to the Corporation for fresh consideration. | 1 | 4,617 | 1,875 | ### Instruction:
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We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement. 21. Thus, from the above discussion, a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting. 22. To test whether the above stipulations as to the contents of the show cause have been satisfied in the present case, it may be useful to extract the relevant portion of the said show cause notice dated 10.04.2018 wherein the Corporation specified the actions that it might adopt against the appellant: Whereas, the above cited clauses are only indicative & not exhaustive. Whereas, it is quite evident from the sequence of events that M/s U.MC Technologies Pvt. Ltd, Kolkata has violated the condition/clauses governing the contract due to its abject failure & clear negligence in ensuring smooth conduct of examination. As it was the sole responsibility of the agency to keep the process of preparation & distribution of question paper and conducting of exam in highly confidential manner, the apparent leak point towards, acts of omission & commission on the part of M/S UMC Technologies Ltd. Kolkata. Whereas, M/S UMC Technologies Pvt. Ltd. Kolkata is hereby provided an opportunity to explain its Position in the matter before suitable decision is taken as per T&C of MTF. The explanation if any should reach this office within a period of 15 days of receipt of this notice falling which appropriate decision shall be taken. ex-parte as per terms and conditions mentioned in MTF without prejudice to any other legal rights & remedies available with the corporation. 23. It is also necessary to highlight the order dated 09.01.2019 passed by the Corporation in pursuant to the aforesaid notice, the operative portion of which reads as under: After having examined the entire matter in detail, the shortcomings/negligence on the part of M/s UMC Technologies Pvt. Ltd. stands established beyond any reasonable doubt. Now, therefore in accordance with clause 42.1(II) of the governing MTF, the competent authority hereby terminates the contract at the risk and cost of the Agency. As per Clause No. 10.1 & 10.2 the said M/s UMC Technologies Pvt. Ltd. is hereby debarred from participating in any future tenders of the corporation for a period of Five years. Further, the Security Deposit too stands forfeited as per clause 15.6 of MTF. This order is issued without prejudice to any other legal remedy available with FCI to safeguard its interest. 24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the Instruction to Bidders, which were part of the Corporations Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellants said belief was well-founded, there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. 25. The mere existence of a clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporations notice is completely silent about blacklisting and as such, it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the appellant could have filed a suitable reply for the same. Therefore, we are of the opinion that the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting. In our view, the order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law. As a result, the consequent blacklisting order dated 09.01.2019 cannot be sustained. 26. In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice, it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case, we deem it appropriate not to remit the matter to the Corporation for fresh consideration.
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the said show cause notice were not such that the appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation. Gorkha Security Services (supra) is a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing/contemplating such an action in the show-cause notice. For this purpose, this Court laid down the below guidelines as to the contents of a show cause notice pursuant to which adverse action such as blacklisting may be adopted:Contents of the show-cause notice21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.22. The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this agent, However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order fulfil the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz:(i) The material/grounds to be stated which according to the department necessitates an action;(ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit.We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement.21. Thus, from the above discussion, a clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.24. A plain reading of the notice makes it clear that the action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the Instruction to Bidders, which were part of the Corporations Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the appellant the impression that the action of blacklisting was being proposed. This is especially true since the appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice. While the following paragraphs deal with whether or not the appellants said belief was well-founded, there can be no question that it was incumbent on the part of the Corporation to clarify in the show cause notice that it intended to blacklist the appellant, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same.25. The mere existence of a clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporations notice is completely silent about blacklisting and as such, it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the appellant could have filed a suitable reply for the same. Therefore, we are of the opinion that the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting. In our view, the order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law. As a result, the consequent blacklisting order dated 09.01.2019 cannot be sustained.26. In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice, it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case, we deem it appropriate not to remit the matter to the Corporation for fresh consideration.
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Mahesh Vs. State Of Maharashtra | was the blood group of the deceased Sunita. He also contended that the prosecution has not explained the injury found on the little finger of the right hand of the appellant and, therefore, the appellant on this ground was also entitled to the benefit of doubt which has rightly been given to him by the trial court. We are afraid to accept this contention of the learned counsel. Dr. Laxman in his deposition before the Court clearly stated that on receipt of a letter from Police Station Officer requesting for taking sample of blood of deceased Sunita, he tried to collect her blood but he was unable to collect the same as all veins of Sunita had collapsed. He handed over Certificate (Ext. 52) to the Police to that effect. The appellant has not explained that the clothes which he was wearing at the time of arrest contained stains of his own blood oozing out of the injury sustained by him on little finger of his right hand. It is no doubt true that human blood found on the clothes and nail clippings of the appellant was not conclusive proof that it belonged to the blood group of the deceased. The decision of this Court in Raghu Nath v. State of Harnaya & Anr. [(2003) 1 SCC 398] , relied upon by the appellant on this point, is of no assistance to him in the facts and circumstances of the present case. In that case, this Court held that where prosecution evidence consisted of interested or inimical witnesses and defence version would compete in probability with that of the prosecution, non-explanation of the injuries of grievous nature sustained by the accused rendered the prosecution story doubtful. That was a case of mob-fight in which injuries were received by both the parties in the melee. 46. This Court in Krishan & Ors. v. State of Haryana [(2006) 12 SCC 459] held that merely because prosecution has failed to explain injuries on the accused, the same cannot be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible. In the case on hand, as we are of the view that no ground is made out to disbelieve and discard the evidence of PWs-4, 8 and 16, who are injured and non-injured eye-witnesses and whose evidence is corroborated by other oral and documentary evidence including the medical evidence, therefore non-explanation of simple injury on little finger of the right hand of the appellant by the prosecution is insignificant in the teeth of the overwhelming, cogent, consistent and trustworthy evidence appearing on record against the appellant for holding him guilty of the commission of the offence. 47. The recovery of the gun and knife was effected by the Investigating Officer at the instance of the appellant from his house in the presence of panch witnesses PW-Vithoba Khobragade and PW-Harihar. It is no doubt true that PW-Vithoba Khobragade deposed that the appellant did not disclose anything before the Police, but he also deposed that the Police had recovered a gun and one knife from the house of the appellant at his instance at about 9.40 to 10.30 on 28.03.1988. The High Court, in our view, rightly observed that it was not possible to hold that the prosecution witnesses or the Police had planted these articles in the house of the appellant, so as to make a show of discovery of the weapons of offence from him. The blade of the knife recovered from the appellant contained blood stains as per the version of Dr. Laxman when this weapon was shown to him by the Police. As per the Chemical Analysers Report, stains of human blood were found on the knife, which was produced in the Court and identified by Dr. Laxman who categorically stated that injuries found on the dead body of Sunita could be caused by the said weapon (Article No.20). 48. The High Court, on reappraisal and reassessment of the entire evidence on record, came to the conclusion that immediately after the occurrence a report came to be lodged to the Police Station against the appellant who has been identified by the PW-Sanjay, an injured eye-witness and non-injured eye-witnesses and further that the appellant had strong motive to commit the murder of Sunita with malice towards PW-Sanjay-her husband, as well as her deceased mother Nirmalabai, therefore, simply because there are some minor discrepancies in the evidence of witnesses which are of no consequence to the true genesis of the case and that some evidence has not been adduced by the prosecution, though might have been available, would not be sufficient grounds to believe that the appellant has been booked in a false case. There is nothing on record brought by the appellant to show that it was quite possible that the witnesses would spare the real culprit and implicate him in a false case. On the basis of the entire evidence elaborately discussed by the High Court, it cannot be held that the appellant, in the present case, has been framed on suspicion.49. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed in the earlier part of the judgment and tested in the light of the principles of law highlighted above, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Additional District Judge, was wholly justified and warranted. The evaluation of the findings recorded by the High Court do not suffer from any manifest error and improper and mis-appreciation of evidence on record. Hence, we agree with the opinion of the High Court that the appellant is the real culprit and he has been rightly held guilty of the offence punishable under Section 302 of IPC. All the contentions raised by the learned counsel for the appellant, in our view, do not merit acceptance. | 0[ds]16. Though the above principles are well-established, a different note was struck in several decisions by this Court. It is, therefore, appropriate if we consider some more leading decisions on the point.In the backdrop of the above-said contentions of the learned counsel for the parties and in the light of principles laid down in the above referred decisions of this Court and the Privy Council on the question of exercising powers in appeal by the High Court against the order of acquittal and the well-settled principles laid down in a series of decisions of this Court on the point of appreciation of the evidence of the injured eye-witnesses and non-injured eye-witnesses, we shall consider the evidence placed on record to find out whether the High Court has committed any error in dealing with the evidence, which can be said to be patently illegal or that the conclusion arrived at is wholly untenable, calling for interference by us.The contention of the learned counsel for the appellant that the conduct of PWs-Archana and Rupesh, the alleged eye-witnesses, not accompanying the injured persons to the hospital and not reporting the incident to the Police should be viewed with suspicion and, therefore, their evidence has to be rejected fromthe present case, we find from the record that at the time of the occurrence of the crime PW-Archana was about 19 years of age whereas PW-Rupesh was hardly 14 years of age. Both these witnesses as earlier stated on seeing the appellant giving repeated knife blows on some parts of neck, head and back of Sunita and inflicting severe injuries to PW-Sanjay and Nirmalabai, they immediately rushed to the house of PW-Sadashio and promptly reported the entire incident to him. The conduct of these two children, in these circumstances, cannot be found suspicious or unnatural as contended by the learned counsel. These witnesses have withstood the cross-examination with courage and boldness and their testimony could not be impeached by the defence in regard to the genesis of the incident. The eye-witnesses have no animus against the appellant to implicate him in a false case and leaving the real assailant from the clutches of law. In the circumstances, no fault can be found in regard to the conduct of these witnesses. This contention raised deserves to beThe High Court, on reappraisal and reassessment of the entire evidence on record, came to the conclusion that immediately after the occurrence a report came to be lodged to the Police Station against the appellant who has been identified by the PW-Sanjay, an injured eye-witness and non-injured eye-witnesses and further that the appellant had strong motive to commit the murder of Sunita with malice towards PW-Sanjay-her husband, as well as her deceased mother Nirmalabai, therefore, simply because there are some minor discrepancies in the evidence of witnesses which are of no consequence to the true genesis of the case and that some evidence has not been adduced by the prosecution, though might have been available, would not be sufficient grounds to believe that the appellant has been booked in a false case. There is nothing on record brought by the appellant to show that it was quite possible that the witnesses would spare the real culprit and implicate him in a false case. On the basis of the entire evidence elaborately discussed by the High Court, it cannot be held that the appellant, in the present case, has been framed on suspicion.49. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed in the earlier part of the judgment and tested in the light of the principles of law highlighted above, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Additional District Judge, was wholly justified and warranted. The evaluation of the findings recorded by the High Court do not suffer from any manifest error and improper and mis-appreciation of evidence on record. Hence, we agree with the opinion of the High Court that the appellant is the real culprit and he has been rightly held guilty of the offence punishable under Section 302 of IPC. All the contentions raised by the learned counsel for the appellant, in our view, do not merit acceptance. | 0 | 12,242 | 777 | ### Instruction:
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was the blood group of the deceased Sunita. He also contended that the prosecution has not explained the injury found on the little finger of the right hand of the appellant and, therefore, the appellant on this ground was also entitled to the benefit of doubt which has rightly been given to him by the trial court. We are afraid to accept this contention of the learned counsel. Dr. Laxman in his deposition before the Court clearly stated that on receipt of a letter from Police Station Officer requesting for taking sample of blood of deceased Sunita, he tried to collect her blood but he was unable to collect the same as all veins of Sunita had collapsed. He handed over Certificate (Ext. 52) to the Police to that effect. The appellant has not explained that the clothes which he was wearing at the time of arrest contained stains of his own blood oozing out of the injury sustained by him on little finger of his right hand. It is no doubt true that human blood found on the clothes and nail clippings of the appellant was not conclusive proof that it belonged to the blood group of the deceased. The decision of this Court in Raghu Nath v. State of Harnaya & Anr. [(2003) 1 SCC 398] , relied upon by the appellant on this point, is of no assistance to him in the facts and circumstances of the present case. In that case, this Court held that where prosecution evidence consisted of interested or inimical witnesses and defence version would compete in probability with that of the prosecution, non-explanation of the injuries of grievous nature sustained by the accused rendered the prosecution story doubtful. That was a case of mob-fight in which injuries were received by both the parties in the melee. 46. This Court in Krishan & Ors. v. State of Haryana [(2006) 12 SCC 459] held that merely because prosecution has failed to explain injuries on the accused, the same cannot be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible. In the case on hand, as we are of the view that no ground is made out to disbelieve and discard the evidence of PWs-4, 8 and 16, who are injured and non-injured eye-witnesses and whose evidence is corroborated by other oral and documentary evidence including the medical evidence, therefore non-explanation of simple injury on little finger of the right hand of the appellant by the prosecution is insignificant in the teeth of the overwhelming, cogent, consistent and trustworthy evidence appearing on record against the appellant for holding him guilty of the commission of the offence. 47. The recovery of the gun and knife was effected by the Investigating Officer at the instance of the appellant from his house in the presence of panch witnesses PW-Vithoba Khobragade and PW-Harihar. It is no doubt true that PW-Vithoba Khobragade deposed that the appellant did not disclose anything before the Police, but he also deposed that the Police had recovered a gun and one knife from the house of the appellant at his instance at about 9.40 to 10.30 on 28.03.1988. The High Court, in our view, rightly observed that it was not possible to hold that the prosecution witnesses or the Police had planted these articles in the house of the appellant, so as to make a show of discovery of the weapons of offence from him. The blade of the knife recovered from the appellant contained blood stains as per the version of Dr. Laxman when this weapon was shown to him by the Police. As per the Chemical Analysers Report, stains of human blood were found on the knife, which was produced in the Court and identified by Dr. Laxman who categorically stated that injuries found on the dead body of Sunita could be caused by the said weapon (Article No.20). 48. The High Court, on reappraisal and reassessment of the entire evidence on record, came to the conclusion that immediately after the occurrence a report came to be lodged to the Police Station against the appellant who has been identified by the PW-Sanjay, an injured eye-witness and non-injured eye-witnesses and further that the appellant had strong motive to commit the murder of Sunita with malice towards PW-Sanjay-her husband, as well as her deceased mother Nirmalabai, therefore, simply because there are some minor discrepancies in the evidence of witnesses which are of no consequence to the true genesis of the case and that some evidence has not been adduced by the prosecution, though might have been available, would not be sufficient grounds to believe that the appellant has been booked in a false case. There is nothing on record brought by the appellant to show that it was quite possible that the witnesses would spare the real culprit and implicate him in a false case. On the basis of the entire evidence elaborately discussed by the High Court, it cannot be held that the appellant, in the present case, has been framed on suspicion.49. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed in the earlier part of the judgment and tested in the light of the principles of law highlighted above, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Additional District Judge, was wholly justified and warranted. The evaluation of the findings recorded by the High Court do not suffer from any manifest error and improper and mis-appreciation of evidence on record. Hence, we agree with the opinion of the High Court that the appellant is the real culprit and he has been rightly held guilty of the offence punishable under Section 302 of IPC. All the contentions raised by the learned counsel for the appellant, in our view, do not merit acceptance.
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16. Though the above principles are well-established, a different note was struck in several decisions by this Court. It is, therefore, appropriate if we consider some more leading decisions on the point.In the backdrop of the above-said contentions of the learned counsel for the parties and in the light of principles laid down in the above referred decisions of this Court and the Privy Council on the question of exercising powers in appeal by the High Court against the order of acquittal and the well-settled principles laid down in a series of decisions of this Court on the point of appreciation of the evidence of the injured eye-witnesses and non-injured eye-witnesses, we shall consider the evidence placed on record to find out whether the High Court has committed any error in dealing with the evidence, which can be said to be patently illegal or that the conclusion arrived at is wholly untenable, calling for interference by us.The contention of the learned counsel for the appellant that the conduct of PWs-Archana and Rupesh, the alleged eye-witnesses, not accompanying the injured persons to the hospital and not reporting the incident to the Police should be viewed with suspicion and, therefore, their evidence has to be rejected fromthe present case, we find from the record that at the time of the occurrence of the crime PW-Archana was about 19 years of age whereas PW-Rupesh was hardly 14 years of age. Both these witnesses as earlier stated on seeing the appellant giving repeated knife blows on some parts of neck, head and back of Sunita and inflicting severe injuries to PW-Sanjay and Nirmalabai, they immediately rushed to the house of PW-Sadashio and promptly reported the entire incident to him. The conduct of these two children, in these circumstances, cannot be found suspicious or unnatural as contended by the learned counsel. These witnesses have withstood the cross-examination with courage and boldness and their testimony could not be impeached by the defence in regard to the genesis of the incident. The eye-witnesses have no animus against the appellant to implicate him in a false case and leaving the real assailant from the clutches of law. In the circumstances, no fault can be found in regard to the conduct of these witnesses. This contention raised deserves to beThe High Court, on reappraisal and reassessment of the entire evidence on record, came to the conclusion that immediately after the occurrence a report came to be lodged to the Police Station against the appellant who has been identified by the PW-Sanjay, an injured eye-witness and non-injured eye-witnesses and further that the appellant had strong motive to commit the murder of Sunita with malice towards PW-Sanjay-her husband, as well as her deceased mother Nirmalabai, therefore, simply because there are some minor discrepancies in the evidence of witnesses which are of no consequence to the true genesis of the case and that some evidence has not been adduced by the prosecution, though might have been available, would not be sufficient grounds to believe that the appellant has been booked in a false case. There is nothing on record brought by the appellant to show that it was quite possible that the witnesses would spare the real culprit and implicate him in a false case. On the basis of the entire evidence elaborately discussed by the High Court, it cannot be held that the appellant, in the present case, has been framed on suspicion.49. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed in the earlier part of the judgment and tested in the light of the principles of law highlighted above, it must be held that the interference made in the present case by the High Court with the order of acquittal passed by the learned Additional District Judge, was wholly justified and warranted. The evaluation of the findings recorded by the High Court do not suffer from any manifest error and improper and mis-appreciation of evidence on record. Hence, we agree with the opinion of the High Court that the appellant is the real culprit and he has been rightly held guilty of the offence punishable under Section 302 of IPC. All the contentions raised by the learned counsel for the appellant, in our view, do not merit acceptance.
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Sayed Mohammed Masood Vs. State of Maharashtra, Through The Inspector In Charge & Another | the commission of a cognizable offense and the information so lodged must provide a basis for the police officer to suspect the 18 commission of a cognizable offense. He has also referred to the case of T. T. Antony v/s State of Kerala, reported in (2001) 6 SCC 181. In paragraph 18 of the said judgment the Supreme Court held as under:"An information given under subsection (1) of Section 154 Cr.P.C. Is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offense recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends of with the formation of opinion under Section 169 of 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offenses. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report FIR postulated by Section 154 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offense disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offenses as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. No such information / statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. Take a case where an FIR mentions cognizable offense under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under Section 173(2) or 173(8) Cr.P.C. As the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.Another judgment referred by him is the case of Ramesh Bajaj v/s State NCT of Delhi and others, reported in (1999) 3 SCC 259. In this case the Supreme Court took cognizance of the material that had become available to the investigating agency after the investigation had been started and it also quoted extensively from the Bhajan Lals case (supra) and in paragraph 9 it stated, If factual foundation for the offense has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. In paragraph 10 the Supreme Court held that the facts narrated in the complaint disclose commercial transaction or money transaction, but that was hardly a reason for holding that the offense of cheating could elude from such a transaction and noted that many a cheatings were committed in the course of commercial and money transactions. Then in paragraph 11 it gave the conclusion, which reads thus:"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 offense or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honor payment on receipt of invoices, and that the complainant realized later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had 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.13. At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out. | 1[ds]9. Since there is no controversy on facts and no further facts need to be even investigated by the police because it is admitted case of both the parties that the monies were paid for a period of five years at the rate of Rs.4,000/per month but the vehicle was not returned. Whereas the case of the petitioner is that they could retain the vehicle and in terms of the agreement they could sell the vehicle to anybody and the complainant had the preference.Learned Senior Counsel also submitted that in order to make an offense under Section 420 of the Indian Penal Code, the accused must have the intention at the inception of the contract. However, there is nothing in the complaint or in the statement of the complainant to show that the accused had such an intention at the inception of the contract. In this connection, reliance is placed on the judgment of the Calcutta High Court in Raymond Ltd. (JKFT Division) v/s H. V. Doshi and Brothers Pvt. Ltd., reported in 2006(1) CHN 578, wherein the Court held, In order to establish cheating as provided in Section 420 of IPC it must be established that the accused petitioner had the intention to induce, deceive and cheat the complainant right from very beginning. In the instant case, nothing such happened as it transpired from petition of complaint. Similarly, the Supreme Court in Hira Lal Hari Lal Bhagwati v/s CBI, New Delhi, reported in (2003) 5 SCC 257 , held, It is settled law, by a catena of decisions, that for establishing the offense of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed.Learned Senior Advocate appearing for the petitioner submits that in view of all these judgments and in view of the admitted fact with regard to the case, one thing is clear that there has been no intention to deceive at the inception of the contract and there can be genuine disputes between the parties with regard to the interpretation of various clauses of the agreement. He submits that paragraphs 8 and 15 of the agreement would need a construction so as not to render any of the clauses of the agreement redundant and that can be done by the civil court. He submits that in any case there is no cheating or fraud manifested by the conduct of the accused persons and as such the F.I.R. needs to be quashed.At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out. | 1 | 5,715 | 650 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the commission of a cognizable offense and the information so lodged must provide a basis for the police officer to suspect the 18 commission of a cognizable offense. He has also referred to the case of T. T. Antony v/s State of Kerala, reported in (2001) 6 SCC 181. In paragraph 18 of the said judgment the Supreme Court held as under:"An information given under subsection (1) of Section 154 Cr.P.C. Is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offense recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends of with the formation of opinion under Section 169 of 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offenses. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report FIR postulated by Section 154 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offense disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offenses as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. No such information / statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. Take a case where an FIR mentions cognizable offense under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under Section 173(2) or 173(8) Cr.P.C. As the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.Another judgment referred by him is the case of Ramesh Bajaj v/s State NCT of Delhi and others, reported in (1999) 3 SCC 259. In this case the Supreme Court took cognizance of the material that had become available to the investigating agency after the investigation had been started and it also quoted extensively from the Bhajan Lals case (supra) and in paragraph 9 it stated, If factual foundation for the offense has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. In paragraph 10 the Supreme Court held that the facts narrated in the complaint disclose commercial transaction or money transaction, but that was hardly a reason for holding that the offense of cheating could elude from such a transaction and noted that many a cheatings were committed in the course of commercial and money transactions. Then in paragraph 11 it gave the conclusion, which reads thus:"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 offense or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honor payment on receipt of invoices, and that the complainant realized later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had 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.13. At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out.
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### Explanation:
9. Since there is no controversy on facts and no further facts need to be even investigated by the police because it is admitted case of both the parties that the monies were paid for a period of five years at the rate of Rs.4,000/per month but the vehicle was not returned. Whereas the case of the petitioner is that they could retain the vehicle and in terms of the agreement they could sell the vehicle to anybody and the complainant had the preference.Learned Senior Counsel also submitted that in order to make an offense under Section 420 of the Indian Penal Code, the accused must have the intention at the inception of the contract. However, there is nothing in the complaint or in the statement of the complainant to show that the accused had such an intention at the inception of the contract. In this connection, reliance is placed on the judgment of the Calcutta High Court in Raymond Ltd. (JKFT Division) v/s H. V. Doshi and Brothers Pvt. Ltd., reported in 2006(1) CHN 578, wherein the Court held, In order to establish cheating as provided in Section 420 of IPC it must be established that the accused petitioner had the intention to induce, deceive and cheat the complainant right from very beginning. In the instant case, nothing such happened as it transpired from petition of complaint. Similarly, the Supreme Court in Hira Lal Hari Lal Bhagwati v/s CBI, New Delhi, reported in (2003) 5 SCC 257 , held, It is settled law, by a catena of decisions, that for establishing the offense of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed.Learned Senior Advocate appearing for the petitioner submits that in view of all these judgments and in view of the admitted fact with regard to the case, one thing is clear that there has been no intention to deceive at the inception of the contract and there can be genuine disputes between the parties with regard to the interpretation of various clauses of the agreement. He submits that paragraphs 8 and 15 of the agreement would need a construction so as not to render any of the clauses of the agreement redundant and that can be done by the civil court. He submits that in any case there is no cheating or fraud manifested by the conduct of the accused persons and as such the F.I.R. needs to be quashed.At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out.
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Dwarka Prasad Agarwal (D) By Lr. Vs. Ramesh Chandra Agarwal | the winding up of companies.(3) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up." 19. A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the civil court has not been ousted. The civil court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the generally law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters of the court would not be concerned even with the question as to title/ownership of the property. 20. In India, it is title, that a person cannot be forcibly dispossessed except in accordance with law. (See Lallu Yeshwant Singh (dead) by legal representations vs. Rao Jagdish Singh and others AIR 1968 SC 620 at Page 622). 21. In Suvvari Sanyasi Apparao and Another vs. Bodderpalli Lakshminarayana and another (1962) Supp. 1 SCR 8), this Court upon considering the Press and Registration of Books Act, 1867 observed that the matter relating to ownership of the press is a matter of general law and the Court, thus, must follow that law. It was observed that a declared keeper of the press is not necessarily the owner thereof so as to be able to confer title to the press upon another. 22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all dispute of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of civil court requires strict interpretation. The court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda (dead) by Lrs. and others vs. Ogeppa and others (2003(3) Supreme 13). Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956. 23. In R. Prakasam vs. Sree Narayana Dharma Paripalana Yogam (1980) (50) CC 611), it has been held that: ".... The purpose of s.2(11) read with s.10 is only to enable the shareholders to decide as to which court they should approach for remedy, in respect of that particular matter. It is difficult to construe the definition clause as one conferring jurisdiction, exclusive or otherwise; and even s.10 refers only to "the court having jurisdiction under this Act", i.e. where such jurisdiction is conferred by the Act, as under Sections 107, 155, 163(2), 237, 397, 425, etc. In other words, the conferment of jurisdiction on "the court" is not under s.10, but by other provisions of the Act like those enumerated above. If, on the other hand, Sections 2(11) and 10 are construed as not only nominating the courts, but also conferring exclusive jurisdiction on them, the specific provisions in the other sections conferring jurisdiction on the court to deal with the matters covered by them will become redundant. It may be that where the Act specifies the company court as the forum for complaint in respect of a particular matter, the jurisdiction of the civil court would stand ousted to that extent. This depends, as already noticed, on the language of the particular provisions (like Sections 107, 155, 397 and others) and not on Sections 2(11) and 10..." 24. Yet again in Maharaja Exports and Another vs. Apparels Exports Promotional Council (1986 (60) CC 353), the Delhi High Court held: "Under section 9 of the Code of Civil Procedure, 1908, civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is expressly or impliedly barred. Unlike some statutes, the Companies Act does not contain any express provision barring the jurisdiction of the ordinary civil courts in matters covered by the provisions of the Act. In certain cases like winding-up of companies, the jurisdiction of civil courts is impliedly barred.Where a person objects to the election of directors and claims a decree for a declaration that he was one of the directors, there is no provision which bars the civil court either expressly or by implication from trying such a suit."In the present suit also, besides other reliefs, the plaintiff has sought a declaration that all the 27 members of the existing executive committee are not entitled to hold the respective offices in view of the judgment of this court and further that the 18 members of the executive committee who have retired by rotation are not entitled to continue in office as members of the executive committee. The judgment, referred to above, fairly and squarely applies to the facts of the present case and there is no reason to oust the jurisdiction of this court to entertain the present suit. Under these circumstances, this issue is decided in favour of the plaintiff and against the defendants." 25. In that view of the matter, we are of the opinion that the civil suit was maintainable. In any event, we fail to understand and rather it is strange as to how the High Court while rejecting relief to the original plaintiff, (late Dwarka Prasad Agarwal), granted a similar relief in favour of the first respondent herein.26. The impugned orders are, therefore, set aside. The matters are remitted to the Collector/High Court for a fresh decision on merits as expeditiously as possible within a period of three months, keeping in view the observations made hereinabove. 27. | 1[ds]17. At the outset, we may observe that when a disputed question as regard the right of one partner against the other to file a declaration in terms of the provisions of the Act had arisen for consideration, the High Court was not correct in issuing a subsequent direction in the review petition. Such a jurisdiction the High Court did not have. The conflicting rights of the parties were required to be determined in accordance with law by the statutory authority. Such a dispute, it goes without saying, should be determined as expeditiously as possible inasmuch as the dispute involved rival claims of the parties to the lis to run and manage newspaper business. In any event, while directing the statutory authority to dispose of the matter in accordance with law; it does not stand to any reason as to why a party to the lis was given such liberty so as to file an application for stay of inquiry by the District Magistrate till the disposed of the civil suit particularly when the High Court itself was of the opinion that the suit was not maintainable. We fail to see any reason as to why one party to the lis should be given unfair advantage over another in the matter of enforcement of statutory rights under the said Act. The orders of the High Court are, thus, absolutely contradictory to and inconsistent with each other, and do not stand a moments scrutiny. The impugned orders are, therefore, set aside with a direction to the Appellate Board to hear out and dispose of the appeal as expeditiously as possible but not later than three months from the date of communication of this order. It would be open to the Appellate Board to consider the question of adequately compensating the appellants herein on monetary terms in the event it comes to the conclusion that the appeal was liable to be dismissed.A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the civil court has not been ousted. The civil court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the generally law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters of the court would not be concerned even with the question as to title/ownership of the property.The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all dispute of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of civil court requires strict interpretation. The court, it iswould normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda (dead) by Lrs. and others vs. Ogeppa and others (2003(3) Supreme 13). Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956.In that view of the matter, we are of the opinion that the civil suit was maintainable. In any event, we fail to understand and rather it is strange as to how the High Court while rejecting relief to the original plaintiff, (late Dwarka Prasad Agarwal), granted a similar relief in favour of the first respondent herein.26. The impugned orders are, therefore, set aside. The matters are remitted to the Collector/High Court for a fresh decision on merits as expeditiously as possible within a period of three months, keeping in view the observations made hereinabove. | 1 | 3,665 | 725 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the winding up of companies.(3) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up." 19. A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the civil court has not been ousted. The civil court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the generally law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters of the court would not be concerned even with the question as to title/ownership of the property. 20. In India, it is title, that a person cannot be forcibly dispossessed except in accordance with law. (See Lallu Yeshwant Singh (dead) by legal representations vs. Rao Jagdish Singh and others AIR 1968 SC 620 at Page 622). 21. In Suvvari Sanyasi Apparao and Another vs. Bodderpalli Lakshminarayana and another (1962) Supp. 1 SCR 8), this Court upon considering the Press and Registration of Books Act, 1867 observed that the matter relating to ownership of the press is a matter of general law and the Court, thus, must follow that law. It was observed that a declared keeper of the press is not necessarily the owner thereof so as to be able to confer title to the press upon another. 22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all dispute of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of civil court requires strict interpretation. The court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda (dead) by Lrs. and others vs. Ogeppa and others (2003(3) Supreme 13). Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956. 23. In R. Prakasam vs. Sree Narayana Dharma Paripalana Yogam (1980) (50) CC 611), it has been held that: ".... The purpose of s.2(11) read with s.10 is only to enable the shareholders to decide as to which court they should approach for remedy, in respect of that particular matter. It is difficult to construe the definition clause as one conferring jurisdiction, exclusive or otherwise; and even s.10 refers only to "the court having jurisdiction under this Act", i.e. where such jurisdiction is conferred by the Act, as under Sections 107, 155, 163(2), 237, 397, 425, etc. In other words, the conferment of jurisdiction on "the court" is not under s.10, but by other provisions of the Act like those enumerated above. If, on the other hand, Sections 2(11) and 10 are construed as not only nominating the courts, but also conferring exclusive jurisdiction on them, the specific provisions in the other sections conferring jurisdiction on the court to deal with the matters covered by them will become redundant. It may be that where the Act specifies the company court as the forum for complaint in respect of a particular matter, the jurisdiction of the civil court would stand ousted to that extent. This depends, as already noticed, on the language of the particular provisions (like Sections 107, 155, 397 and others) and not on Sections 2(11) and 10..." 24. Yet again in Maharaja Exports and Another vs. Apparels Exports Promotional Council (1986 (60) CC 353), the Delhi High Court held: "Under section 9 of the Code of Civil Procedure, 1908, civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is expressly or impliedly barred. Unlike some statutes, the Companies Act does not contain any express provision barring the jurisdiction of the ordinary civil courts in matters covered by the provisions of the Act. In certain cases like winding-up of companies, the jurisdiction of civil courts is impliedly barred.Where a person objects to the election of directors and claims a decree for a declaration that he was one of the directors, there is no provision which bars the civil court either expressly or by implication from trying such a suit."In the present suit also, besides other reliefs, the plaintiff has sought a declaration that all the 27 members of the existing executive committee are not entitled to hold the respective offices in view of the judgment of this court and further that the 18 members of the executive committee who have retired by rotation are not entitled to continue in office as members of the executive committee. The judgment, referred to above, fairly and squarely applies to the facts of the present case and there is no reason to oust the jurisdiction of this court to entertain the present suit. Under these circumstances, this issue is decided in favour of the plaintiff and against the defendants." 25. In that view of the matter, we are of the opinion that the civil suit was maintainable. In any event, we fail to understand and rather it is strange as to how the High Court while rejecting relief to the original plaintiff, (late Dwarka Prasad Agarwal), granted a similar relief in favour of the first respondent herein.26. The impugned orders are, therefore, set aside. The matters are remitted to the Collector/High Court for a fresh decision on merits as expeditiously as possible within a period of three months, keeping in view the observations made hereinabove. 27.
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17. At the outset, we may observe that when a disputed question as regard the right of one partner against the other to file a declaration in terms of the provisions of the Act had arisen for consideration, the High Court was not correct in issuing a subsequent direction in the review petition. Such a jurisdiction the High Court did not have. The conflicting rights of the parties were required to be determined in accordance with law by the statutory authority. Such a dispute, it goes without saying, should be determined as expeditiously as possible inasmuch as the dispute involved rival claims of the parties to the lis to run and manage newspaper business. In any event, while directing the statutory authority to dispose of the matter in accordance with law; it does not stand to any reason as to why a party to the lis was given such liberty so as to file an application for stay of inquiry by the District Magistrate till the disposed of the civil suit particularly when the High Court itself was of the opinion that the suit was not maintainable. We fail to see any reason as to why one party to the lis should be given unfair advantage over another in the matter of enforcement of statutory rights under the said Act. The orders of the High Court are, thus, absolutely contradictory to and inconsistent with each other, and do not stand a moments scrutiny. The impugned orders are, therefore, set aside with a direction to the Appellate Board to hear out and dispose of the appeal as expeditiously as possible but not later than three months from the date of communication of this order. It would be open to the Appellate Board to consider the question of adequately compensating the appellants herein on monetary terms in the event it comes to the conclusion that the appeal was liable to be dismissed.A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the civil court has not been ousted. The civil court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the generally law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters of the court would not be concerned even with the question as to title/ownership of the property.The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all dispute of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of civil court requires strict interpretation. The court, it iswould normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil courts jurisdiction is ousted. (See Sahebgouda (dead) by Lrs. and others vs. Ogeppa and others (2003(3) Supreme 13). Even otherwise, the civil courts jurisdiction is not completely ousted under the Companies Act, 1956.In that view of the matter, we are of the opinion that the civil suit was maintainable. In any event, we fail to understand and rather it is strange as to how the High Court while rejecting relief to the original plaintiff, (late Dwarka Prasad Agarwal), granted a similar relief in favour of the first respondent herein.26. The impugned orders are, therefore, set aside. The matters are remitted to the Collector/High Court for a fresh decision on merits as expeditiously as possible within a period of three months, keeping in view the observations made hereinabove.
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STATE OF M.P & ORS. Vs. RAKESH SETHI & ANR. | and royalty. If this were not so, it would lead to the absurd result that when the government grants a mining lease, it is granted gratis to a person who wants to extract minerals and profit from them. Rules for regulating the grant of mining leases cannot be confined merely to rules providing for the form in which applications for such leases are to be made, the factors to be taken into account in granting or refusing such applications and other cognate matters. Such rules must necessarily include provisions with respect to the consideration for the grant. Under Section 15(1), therefore, the State Governments have the power to make rules providing for payment of surface rent, dead rent and royalty by the lessee to the government. 36. In Jaintia Hill Truck Owners Assn (Supra) , this court had pertinently observed in the context of services rendered by weighment, through third party, agencies, where the state enabled charging of fee, that: 28. Where the State or the State-controlled agencies render services for the purpose of effectuation of the provisions of a Central Act, it, in our opinion, is entitled to charge a reasonable amount in respect thereof. We may, in this behalf, refer to a decision of this Court in T. Cajee v. U. Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750 ] . The question which arose for consideration therein was as to whether in absence of any law regulating the appointment and succession of chiefs and headmen, a notice issued to the respondent therein to show cause as to why he should not be removed from his office, was valid. 37. The decision cited in Jaintia Hill (supra) – i.e., T. Cajee v U. Jormanik Siem 1961 (1) SCR 750. considered the validity of appointment of a village headman by an autonomous district council, under provisions of the Sixth Schedule to the Constitution of India. The High Court upheld the argument that a conferment of legislative power (conferred upon the District Council) if not exercised, did not empower the council to issue appointment in the absence of rules. This court disapproved the High Courts reasoning and held that: With respect, it seems to us that the High Court has read far more into Para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Articles 73 and 162 of the Constitution, the administrative power of the District Council would not extend to the subjects enumerated in Para 3(1). Now Para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district… 38. The other decision, cited in Jaintia Hill (supra), i.e., Surinder Singh v. Central Government (1986) 4 SCC 667 states the proposition in the following terms: Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not a condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression subject to the rules only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. 39. This court therefore, holds that the assignment of distinctive marks i.e. registration numbers to motor vehicles (which includes the power to reserve and allocate them, for a specific fee) is a distinct service for which states or their authorities (such as the registering authorities, in this case) are entitled to charge a prescribed fee. Rule 55A of the MP Rules is not therefore, in excess of the powers conferred upon the state, by the Act or the Central Rules. 40. This court notices that the impugned judgment proceeded on the assumption that the state was not competent to make the legislation. The use of that expression, at best can be characterized as misconceived. In the present case, the state of M.P. derived its powers to frame the concerned rules, through the provisions of the Motor Vehicles Act itself. The question, therefore, of repugnance as properly understood, did not arise; rather it was a case whether the state government, as one of the delegated authorities, was empowered through Parliamentary law to frame the rule that it did. At best, the issue that arose was whether the offending rule (Rule 55A) was ultra vires the Act or the Central Rules. In the opinion of this court, the impugned rule was within the ambit of the powers delegated to the state, and directly related to performance of its functions under Section 41(6), for which it could legitimately claim a fee, as was done through Rule 55A. 41. Before parting with this judgment, the court records its gratitude to Mr. Manoj Swaroop, Senior Advocate for acting as amicus and ably marshalling all arguments that could be mustered to assist this court. | 1[ds]26. Section 41(6) the interplay of which, with Section 41(2), is directly in issue – enacts that the registering authority shall assign to the vehicle for display thereon a distinguishing mark consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time . Now, this provision is divided into two parts. Although the duty of the registering authority to assign the distinguishing mark has been enacted as the first event, in reality, in sequence, the allotment of groups of letters followed by such letters and figures (which find mention in the latter part of the provision), that are allotted to the State by the Central Government would be an event that occurs prior to the assignment of such distinguishing mark and number. The notification of 12.06.1989 issued by the Central Government in exercise of this power to allocate numbers under Section 41(6) has allocated distinguished groups of letters to each individual State and UT. According to the notification, this group of letters is to be followed by the code number of the registering authority to be allocated by the State Government or the Administrator of the UT. The notification, after setting out the groups of letters, goes on to state that where four figures referred to earlier in it, (i.e. the notification) reaches 9999, the next series shall begin with the alphabet A followed by not more than four figures and thereafter with alphabet B, and so on. This notification from its facial reading clothes the state government or the UT administration, with the distinct task of allotting the code number and thereafter assigning the numerics (the four numbers in question).29. This Court is of the opinion that the High Court, in its impugned judgement, lost sight of the true import of Section 211. The existence of specific provisions empowering the State (such as Sections 41(13), 47(7), 49(4) and 50(5)), means that the power of the State to claim or charge amounts is specifically recognized by express provisions. Further, there are certain services and functions for which the State is empowered to levy fees. It is precisely to cover these contingencies, i.e. where the service is rendered or some function performed, that the State is empowered by a residual provision (much like the Central Government with which it shares the power concurrently) to levy fees. In this respect, it would be useful to note that Section 211 is cast in wide terms and that any rule which the Central Government or the State Government is empowered to make under this Act may, notwithstanding the absence of any express provision to that effect, provide for the levy of such fees in respect of applications, amendment of documents, issue of certificates, licences, permits, tests, endorsements, badges, plates, countersignatures, authorisation, supply of statistics or copies of documents or orders and for any other purpose or matter involving the rendering of any service. Clearly, therefore, the Parliament intended that contingencies not covered by a specific power to levy fees or amounts, which entailed some activity on the part of the State, including rendering of any service could be legitimately charged or subjected to the levy of fee or amounts.31. In addition to charging such fees, the registering authority is enjoined by Rule 55A(2) to follow the principle of first-come-first-serve in reserving particular numbers; and to allot the registration mark reserved upon production of the vehicle along with the application in Form-20 (of the Central Rules), provided the vehicle is compliant with the provisions of the Act and Rules. By Rule 55A(d), the reservation of the mark would be cancelled if the vehicle is not produced for allotment within three months from the date of allotment. Obviously, this is meant to avoid abuse of the reservation process by trafficking in numbers, by providing finite time within which such numbers can be used.32. Quite like in the case of fees for assignment of particular numbers, certain other services too are contemplated under the Act. Section 56(1) directs that no transport vehicle would be deemed to be validly registered unless it carries a certificate of fitness. Such fitness certificate is to be issued by authorized testing stations [by Section 56(2)]. Section 43 enables the owner of a motor vehicle to apply to any registering authority or other authority which may be prescribed by the State Government to have the vehicle temporarily registered. This provision contains a non-obstante clause. Various provisions of the Act deal with orders of higher authorities and appellate authorities. Implicit with this is the power to issue copies of such decisions. Further, in cases where individuals or parties interested seek to duplicate or acquire extra copies of such orders, a separate category of service is provided. Likewise, wherever duplicates of documents such as Registration Certificates etc. are issued, necessarily, a service is performed. Rule 62 of the M.P. Rules of 1994 provided for fees to be charged in respect of various such services (temporary registration or extension thereof in different classes of vehicles); copies of miscellaneous applications, duplicate certificate of fitness for different classes of vehicles and so on. An overall reading of the M.P. Rules and the Act therefore clearly establishes that besides the express authorization to levy fees or collect amounts, both the Central Government and the State Government are empowered – in fact duty bound to extend certain services in the performance of such duties. Both these bodies, i.e. the Central and State Governments would therefore, be acting within their authority to charge or levy fees.33. If there are any further doubts on this issue, the generality of the power under Section 65(1) to frame rules, in the opinion of this Court is sufficient along with Section 211, to conclude that the State Government has the authority to prescribe a fee for reserving certain numbers or distinguishing marks to be assigned as registration numbers. It has not been shown how the setting apart of or reservation of some numbers – here, a fraction of the large potential batch of numbers which the registering authority can otherwise assign to vehicles, is per se arbitrary or unreasonable. Neither were any such arguments urged before this Court.34. This Court has in the past observed that whenever a State confers rule making power or empowers delegated legislation, i.e. and where or wherever the statute first lays out a general provision authorizing subordinate legislation or the framing of separate legislation to carry out the purposes of that Act, and uses the expression in particular and without generality of the foregoing powers, followed by another delegation which enumerates specific powers preceded by expressions such as in particular and without the generality of the foregoing powers, the particularization is only illustrative and does not subsume the general power. The State had relied upon the decision in Academy of Nutrition (supra) which was to that effect.39. This court therefore, holds that the assignment of distinctive marks i.e. registration numbers to motor vehicles (which includes the power to reserve and allocate them, for a specific fee) is a distinct service for which states or their authorities (such as the registering authorities, in this case) are entitled to charge a prescribed fee. Rule 55A of the MP Rules is not therefore, in excess of the powers conferred upon the state, by the Act or the Central Rules.40. This court notices that the impugned judgment proceeded on the assumption that the state was not competent to make the legislation. The use of that expression, at best can be characterized as misconceived. In the present case, the state of M.P. derived its powers to frame the concerned rules, through the provisions of the Motor Vehicles Act itself. The question, therefore, of repugnance as properly understood, did not arise; rather it was a case whether the state government, as one of the delegated authorities, was empowered through Parliamentary law to frame the rule that it did. At best, the issue that arose was whether the offending rule (Rule 55A) was ultra vires the Act or the Central Rules. In the opinion of this court, the impugned rule was within the ambit of the powers delegated to the state, and directly related to performance of its functions under Section 41(6), for which it could legitimately claim a fee, as was done through Rule 55A.30. The assignment of numbers by the registering authority, as seen earlier, through an official/agency or department notified by the State Government, cannot be seen as a mere step – albeit at the fag-end of the registration allotment process. In fact, though it is the culmination of the allotment process, it is nevertheless an important step. The state, in the opinion of this Court, is entitled to indicate its choice or manner of assigning by prescribing a particular set of procedures for the assignment of numbers. Thus, for instance, the assignment of the concerned code - to the individual registering authorities followed by the assignment of numerics may follow a predetermined pattern which may be district wise, state government department wise (in the case of publicly owned vehicles), different sequences for buses and heavy vehicles and so on. If such a predetermined choice can be made by prescribing the mode of assignment, it is both regulatory and at the same time indicative of State policy. Per se, the Court cannot brush aside the element of service which may be involved – especially if the general public or a sub-section of it, wishes to choose particular numbers for various considerations. Such fancy numbers or auspicious numbers may well therefore have to be set apart having regard to the peculiar socio-cultural needs of the people of the state. It is in such an event that the availability of such numbers and their reservation as a choice and the power of their assignment assumes importance. In the impugned Rule 55A in the present instance, introduced in 2001 through amendment by the State of M.P., prescribes four different fees – Rs. 15000/- for the registration marks 1 to 9 in any series prevalent within the jurisdiction of the registering authority; and Rs. 12000/- for reservation of marks from 10 to 100 in any series within the jurisdiction of the registering authority. For reservation of large series of numbers indicated in Rule 55A(c), Rs. 10000/- and Rs. 2000/- for reservation of any other number or numbers within 1000 from the last number assigned in the serial order.36. In Jaintia Hill Truck Owners Assn (Supra) , this court had pertinently observed in the context of services rendered by weighment, through third party, agencies, where the state enabled charging of fee, that:28. Where the State or the State-controlled agencies render services for the purpose of effectuation of the provisions of a Central Act, it, in our opinion, is entitled to charge a reasonable amount in respect thereof. We may, in this behalf, refer to a decision of this Court in T. Cajee v. U. Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750 ] . The question which arose for consideration therein was as to whether in absence of any law regulating the appointment and succession of chiefs and headmen, a notice issued to the respondent therein to show cause as to why he should not be removed from his office, was valid.. The decision cited in Jaintia Hill (supra) – i.e., T. Cajee v U. Jormanik Siem 1961 (1) SCR 750. considered the validity of appointment of a village headman by an autonomous district council, under provisions of the Sixth Schedule to the Constitution of India. The High Court upheld the argument that a conferment of legislative power (conferred upon the District Council) if not exercised, did not empower the council to issue appointment in the absence of rules. This court disapproved the High Courts reasoning and held that:With respect, it seems to us that the High Court has read far more into Para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Articles 73 and 162 of the Constitution, the administrative power of the District Council would not extend to the subjects enumerated in Para 3(1). Now Para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district… | 1 | 9,299 | 2,490 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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and royalty. If this were not so, it would lead to the absurd result that when the government grants a mining lease, it is granted gratis to a person who wants to extract minerals and profit from them. Rules for regulating the grant of mining leases cannot be confined merely to rules providing for the form in which applications for such leases are to be made, the factors to be taken into account in granting or refusing such applications and other cognate matters. Such rules must necessarily include provisions with respect to the consideration for the grant. Under Section 15(1), therefore, the State Governments have the power to make rules providing for payment of surface rent, dead rent and royalty by the lessee to the government. 36. In Jaintia Hill Truck Owners Assn (Supra) , this court had pertinently observed in the context of services rendered by weighment, through third party, agencies, where the state enabled charging of fee, that: 28. Where the State or the State-controlled agencies render services for the purpose of effectuation of the provisions of a Central Act, it, in our opinion, is entitled to charge a reasonable amount in respect thereof. We may, in this behalf, refer to a decision of this Court in T. Cajee v. U. Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750 ] . The question which arose for consideration therein was as to whether in absence of any law regulating the appointment and succession of chiefs and headmen, a notice issued to the respondent therein to show cause as to why he should not be removed from his office, was valid. 37. The decision cited in Jaintia Hill (supra) – i.e., T. Cajee v U. Jormanik Siem 1961 (1) SCR 750. considered the validity of appointment of a village headman by an autonomous district council, under provisions of the Sixth Schedule to the Constitution of India. The High Court upheld the argument that a conferment of legislative power (conferred upon the District Council) if not exercised, did not empower the council to issue appointment in the absence of rules. This court disapproved the High Courts reasoning and held that: With respect, it seems to us that the High Court has read far more into Para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Articles 73 and 162 of the Constitution, the administrative power of the District Council would not extend to the subjects enumerated in Para 3(1). Now Para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district… 38. The other decision, cited in Jaintia Hill (supra), i.e., Surinder Singh v. Central Government (1986) 4 SCC 667 states the proposition in the following terms: Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not a condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression subject to the rules only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. 39. This court therefore, holds that the assignment of distinctive marks i.e. registration numbers to motor vehicles (which includes the power to reserve and allocate them, for a specific fee) is a distinct service for which states or their authorities (such as the registering authorities, in this case) are entitled to charge a prescribed fee. Rule 55A of the MP Rules is not therefore, in excess of the powers conferred upon the state, by the Act or the Central Rules. 40. This court notices that the impugned judgment proceeded on the assumption that the state was not competent to make the legislation. The use of that expression, at best can be characterized as misconceived. In the present case, the state of M.P. derived its powers to frame the concerned rules, through the provisions of the Motor Vehicles Act itself. The question, therefore, of repugnance as properly understood, did not arise; rather it was a case whether the state government, as one of the delegated authorities, was empowered through Parliamentary law to frame the rule that it did. At best, the issue that arose was whether the offending rule (Rule 55A) was ultra vires the Act or the Central Rules. In the opinion of this court, the impugned rule was within the ambit of the powers delegated to the state, and directly related to performance of its functions under Section 41(6), for which it could legitimately claim a fee, as was done through Rule 55A. 41. Before parting with this judgment, the court records its gratitude to Mr. Manoj Swaroop, Senior Advocate for acting as amicus and ably marshalling all arguments that could be mustered to assist this court.
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states or their authorities (such as the registering authorities, in this case) are entitled to charge a prescribed fee. Rule 55A of the MP Rules is not therefore, in excess of the powers conferred upon the state, by the Act or the Central Rules.40. This court notices that the impugned judgment proceeded on the assumption that the state was not competent to make the legislation. The use of that expression, at best can be characterized as misconceived. In the present case, the state of M.P. derived its powers to frame the concerned rules, through the provisions of the Motor Vehicles Act itself. The question, therefore, of repugnance as properly understood, did not arise; rather it was a case whether the state government, as one of the delegated authorities, was empowered through Parliamentary law to frame the rule that it did. At best, the issue that arose was whether the offending rule (Rule 55A) was ultra vires the Act or the Central Rules. In the opinion of this court, the impugned rule was within the ambit of the powers delegated to the state, and directly related to performance of its functions under Section 41(6), for which it could legitimately claim a fee, as was done through Rule 55A.30. The assignment of numbers by the registering authority, as seen earlier, through an official/agency or department notified by the State Government, cannot be seen as a mere step – albeit at the fag-end of the registration allotment process. In fact, though it is the culmination of the allotment process, it is nevertheless an important step. The state, in the opinion of this Court, is entitled to indicate its choice or manner of assigning by prescribing a particular set of procedures for the assignment of numbers. Thus, for instance, the assignment of the concerned code - to the individual registering authorities followed by the assignment of numerics may follow a predetermined pattern which may be district wise, state government department wise (in the case of publicly owned vehicles), different sequences for buses and heavy vehicles and so on. If such a predetermined choice can be made by prescribing the mode of assignment, it is both regulatory and at the same time indicative of State policy. Per se, the Court cannot brush aside the element of service which may be involved – especially if the general public or a sub-section of it, wishes to choose particular numbers for various considerations. Such fancy numbers or auspicious numbers may well therefore have to be set apart having regard to the peculiar socio-cultural needs of the people of the state. It is in such an event that the availability of such numbers and their reservation as a choice and the power of their assignment assumes importance. In the impugned Rule 55A in the present instance, introduced in 2001 through amendment by the State of M.P., prescribes four different fees – Rs. 15000/- for the registration marks 1 to 9 in any series prevalent within the jurisdiction of the registering authority; and Rs. 12000/- for reservation of marks from 10 to 100 in any series within the jurisdiction of the registering authority. For reservation of large series of numbers indicated in Rule 55A(c), Rs. 10000/- and Rs. 2000/- for reservation of any other number or numbers within 1000 from the last number assigned in the serial order.36. In Jaintia Hill Truck Owners Assn (Supra) , this court had pertinently observed in the context of services rendered by weighment, through third party, agencies, where the state enabled charging of fee, that:28. Where the State or the State-controlled agencies render services for the purpose of effectuation of the provisions of a Central Act, it, in our opinion, is entitled to charge a reasonable amount in respect thereof. We may, in this behalf, refer to a decision of this Court in T. Cajee v. U. Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750 ] . The question which arose for consideration therein was as to whether in absence of any law regulating the appointment and succession of chiefs and headmen, a notice issued to the respondent therein to show cause as to why he should not be removed from his office, was valid.. The decision cited in Jaintia Hill (supra) – i.e., T. Cajee v U. Jormanik Siem 1961 (1) SCR 750. considered the validity of appointment of a village headman by an autonomous district council, under provisions of the Sixth Schedule to the Constitution of India. The High Court upheld the argument that a conferment of legislative power (conferred upon the District Council) if not exercised, did not empower the council to issue appointment in the absence of rules. This court disapproved the High Courts reasoning and held that:With respect, it seems to us that the High Court has read far more into Para 3(1)(g) than is justified by its language. Para 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under Para 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Articles 73 and 162 of the Constitution, the administrative power of the District Council would not extend to the subjects enumerated in Para 3(1). Now Para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district…
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Gomantak Mazdoor Sangh Vs. State of Goa & Anr | order fixing or revising minimum rates of wages under this Act, or errors arising therein from any accidental slip or omission. (2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information. 7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made. 7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948. 7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948. 8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it is stated as under:- 8. That, the Respondent No. 1 in exercise of the powers conferred by clause (b) of Sub-Section (1) of Section 3, read with clause (iii) of Sub-Section (1) of Section 4 and Section 5 (1) (b) of the Minimum Wages Act, 1948, published a Draft Notification in the Official Gazette, Series I, No. 9, dated 28/05/2015 in Order to consider objections, suggestions, and representations by the Respondent No. 1 from all the concerned stakeholders. 9. That, I state that at this stage, the representatives of the Labour Union objected to the draft Notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance (VDA). That, the deliberations continued over a long period of time thereby resulting in delay in issuing the Final Notification for minimum wages. 10. That, I further state that taking into consideration the demand and need for introduction of special allowances in the form of Variable Dearness. Allowance (VOA) and the delay caused in the deliberations resulting in hike in Consumer Price Index and to avoid any further delay, the State Government had in the Final Notification raised the minimum rates of wages proposed in Draft Notification and also provided for introduction of VOA to be notified for the first time in October 2016, and the same was to be revised every six months i.e. in the month of October and April each year. 8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted. 9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948. 10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification. | 1[ds]7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made.7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948.7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948.8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i).8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted.9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948.10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification. | 1 | 3,580 | 798 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
order fixing or revising minimum rates of wages under this Act, or errors arising therein from any accidental slip or omission. (2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information. 7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made. 7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948. 7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948. 8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i). In paragraphs 8,9 and 10, it is stated as under:- 8. That, the Respondent No. 1 in exercise of the powers conferred by clause (b) of Sub-Section (1) of Section 3, read with clause (iii) of Sub-Section (1) of Section 4 and Section 5 (1) (b) of the Minimum Wages Act, 1948, published a Draft Notification in the Official Gazette, Series I, No. 9, dated 28/05/2015 in Order to consider objections, suggestions, and representations by the Respondent No. 1 from all the concerned stakeholders. 9. That, I state that at this stage, the representatives of the Labour Union objected to the draft Notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance (VDA). That, the deliberations continued over a long period of time thereby resulting in delay in issuing the Final Notification for minimum wages. 10. That, I further state that taking into consideration the demand and need for introduction of special allowances in the form of Variable Dearness. Allowance (VOA) and the delay caused in the deliberations resulting in hike in Consumer Price Index and to avoid any further delay, the State Government had in the Final Notification raised the minimum rates of wages proposed in Draft Notification and also provided for introduction of VOA to be notified for the first time in October 2016, and the same was to be revised every six months i.e. in the month of October and April each year. 8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted. 9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948. 10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification.
### Response:
1
### Explanation:
7.2 What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made.7.3 In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948.7.4 At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948.8. Even from the counter affidavit filed on behalf of the respondent before this Court, it is crystal clear that when the earlier notification dated 23/24.05.2016 was issued, the same was issued after due application of mind and after the draft notification was issued in which the minimum wages were sought to be revised as per Section 4(1)(iii). However, after the objections and suggestions were invited, the Labour Union submitted their representations and then a final decision was taken to revise the minimum wages as per Section 4(1)(i).8.1 Therefore, considering paragraphs 8 to 10 of the counter, even according to the State, after the representation of the Labour Union, which objected to the draft notification by putting forth their views for introduction of a special allowance in the form of Variable Dearness Allowance and after due deliberations for a longer period of time, the final notification was issued determining the minimum wages with special allowance. Therefore, subsequent case on behalf of the State that under the notification dated 23/24.05.2016, there was a clerical mistake by mentioning clause (i), which was corrected by issuing the subsequent Errata Notification cannot be accepted.9. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948.10. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification.
|
THE GOVERNMENT OF ANDHRA PRADESH Vs. GRACE SATHYAVATHY SHASHIKANT | judgment by this Court dated 27.02.2019 in which this Court referred to various documents and then stated:?Given the High Court judgment and the aforesaid documents, it is obviously not open to the Government to state that no such plot, that is Survey No. 129/45/D or 129/D-45, exists in Jubilee Hills, Sheikpet, Hyderabad.This being the case, we reject the Committee Report that has since been filed dated 02.07.2018 and set it aside as this Report is not in consonance with the directions of the learned Single Judge which has been upheld by us.We, therefore, direct the Government to demarcate the aforesaid plot being land on the ground as it exists today. This will be done strictly in accordance with the Single Judge?s directions by the Collector within a period of eight weeks from today.The Review Petitions stand disposed of accordingly.List after eight weeks for compliance.?5. Pursuant to the aforesaid order, a Compliance Report has been given to this Court with a map appended thereto. Ultimately, the said land was located by the aforesaid Report on the said map as follows:"Findings: - It is observed that1. A portion of land now demarcated in Plot No. 129/45/D to an extent of Ac.O-38½ gts where an NOC was issued, corresponding to T.S. No. 20, Block-K, Ward No. 12 of Shaikpet Village and the remaining portion of land as per compromise deed in S.A. No. 354/2 of 1954-55 admeasuring Ac. 2- 22½ gts is on northern side of the NOC issued land forming part of 129/45/D corresponds to TS.No. 19P, 18P, 17/2p, Block-K, Ward-12.2. The Land allotted to Andhra Prabha is located in TS.No. 19/p, Block-K, Ward No. 12 of Shaikpet village is not falling in the land demarcated by the Committee.3. Accordingly, plot No. 129/45/D a map is prepared showing the location of Plot No. 129/45/D (triangle ABC) and land allotted to Andhra Prabha (Rectangle PQRS). "6. Objections were then filed to the aforesaid Report by the original petitioners in the civil appeals, to which replies have been filed by the State of Telangana and by Andhra Prabha Publications.7. Having heard learned counsel for all the parties, it is important to advert, first and foremost, to some of the documents that were involved in the original civil appeals before us. A sale deed dated 16.07.1962, which is of pivotal importance in the facts of this case, had made it clear that the property was in rectangular shape and was bounded, among other things, by a public proposed road on the north and vacant Government land on the south and the west. If the map appended to the Compliance Report is to be seen, the description of this property would accord with TS No. 19/P which is marked by the letters ‘PQRS? and which has been alloted to Andhra Prabha publications.8. In addition, if the Urban Land Ceiling Authority?s order of 27.06.2000, declaring part of this land surplus, is also to be seen, the aforesaid order makes it clear that plot No. 129/45/D is contained in TS No. 19/2 and is described as Surplus Vacant Land (it is not disputed that the land which falls under TS No. 17/2 and which admeasures 2 acres 22½ gunthas is heavily built up with buildings having been constructed in the 1980s). Also, the said Urban Land Ceiling order has specifically held that the land on which plot No. 129/45/D stood did not involve any Government land, it being privately owned.9. However, Shri K. Radhakrishanan, learned senior counsel appearing on behalf of the Government, read to us in extenso the reply affidavit filed on behalf of the State of Telangana dated 03.09.2019 in which, after going into the history of the Town Planning Survey of this area, it is specifically stated that the land allotted to Andhra Prabha publications is classified as a Government land which is vacant and different from the land in Survey No. 129/45/D. We have seen from the description of this land in the sale deed of 1962 as well as in the competent authority?s order dated 27.06.2000 that this would be wholly incorrect inasmuch as this land is clearly not a Government land.10. It was also brought to our notice by Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of Andhra Prabha publications, that averments were made by an affidavit of 2006 by the appellants in the original case stating that Survey No.129/45/D was distinct from Survey No. 403 and that being so distinct, they should not be allowed to turn around and argue to the contrary. He also argued that the aforesaid land really could not be stated to be in existence, as was mentioned in the first Survey Report.11. We are afraid that neither of these contentions is open to the learned counsel in view of our judgment dated 27.02.2019 disposing of the review petition before us.12. Ordinarily, we would have relegated the original appellants before us to challenge the Report that has now been filed in compliance with our Review Order. However, we find a reluctance on the part of the authorities to part with this land as it is extremely valuable. We have found how, in the earlier round of proceedings, they have taken various conflicting stands as to whether the land was originally evacuee property or otherwise. We also find that in the first Survey that was done pursuant to the learned Single Judge?s judgment, there was a great reluctance to part with this land which is why the aforesaid Survey Report wrongly stated that such land does not at all exist. It is only at the repeated insistence of this Court that finally a Survey Report has now located the land, but not where it actually exists. The reason is not far to seek - because if, as per the map appended to the present Report, the land marked A, B, C was to be handed over to the appellants, it would be land which is heavily built up and of no use, whatsoever, to the appellants. | 0[ds]We have seen from the description of this land in the sale deed of 1962 as well as in the competent authority?s order dated 27.06.2000 that this would be wholly incorrect inasmuch as this land is clearly not a Government land.We are afraid that neither of these contentions is open to the learned counsel in view of our judgment dated 27.02.2019 disposing of the review petition before us.12. Ordinarily, we would have relegated the original appellants before us to challenge the Report that has now been filed in compliance with our Review Order. However, we find a reluctance on the part of the authorities to part with this land as it is extremely valuable. We have found how, in the earlier round of proceedings, they have takenvarious conflicting stands as to whether the land was originally evacuee property or otherwise. We also find that in the first Survey that was done pursuant to the learned Single Judge?s judgment, there was a great reluctance to part with this land which is why the aforesaid Survey Report wrongly stated that such land does not at all exist. It is only at the repeated insistence of this Court that finally a Survey Report has now located the land, but not where it actually exists. The reason is not far to seek - because if, as per the map appended to the present Report, the land marked A, B, C was to be handed over to the appellants, it would be land which is heavily built up and of no use, whatsoever, to the appellants. | 0 | 1,596 | 289 | ### 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:
judgment by this Court dated 27.02.2019 in which this Court referred to various documents and then stated:?Given the High Court judgment and the aforesaid documents, it is obviously not open to the Government to state that no such plot, that is Survey No. 129/45/D or 129/D-45, exists in Jubilee Hills, Sheikpet, Hyderabad.This being the case, we reject the Committee Report that has since been filed dated 02.07.2018 and set it aside as this Report is not in consonance with the directions of the learned Single Judge which has been upheld by us.We, therefore, direct the Government to demarcate the aforesaid plot being land on the ground as it exists today. This will be done strictly in accordance with the Single Judge?s directions by the Collector within a period of eight weeks from today.The Review Petitions stand disposed of accordingly.List after eight weeks for compliance.?5. Pursuant to the aforesaid order, a Compliance Report has been given to this Court with a map appended thereto. Ultimately, the said land was located by the aforesaid Report on the said map as follows:"Findings: - It is observed that1. A portion of land now demarcated in Plot No. 129/45/D to an extent of Ac.O-38½ gts where an NOC was issued, corresponding to T.S. No. 20, Block-K, Ward No. 12 of Shaikpet Village and the remaining portion of land as per compromise deed in S.A. No. 354/2 of 1954-55 admeasuring Ac. 2- 22½ gts is on northern side of the NOC issued land forming part of 129/45/D corresponds to TS.No. 19P, 18P, 17/2p, Block-K, Ward-12.2. The Land allotted to Andhra Prabha is located in TS.No. 19/p, Block-K, Ward No. 12 of Shaikpet village is not falling in the land demarcated by the Committee.3. Accordingly, plot No. 129/45/D a map is prepared showing the location of Plot No. 129/45/D (triangle ABC) and land allotted to Andhra Prabha (Rectangle PQRS). "6. Objections were then filed to the aforesaid Report by the original petitioners in the civil appeals, to which replies have been filed by the State of Telangana and by Andhra Prabha Publications.7. Having heard learned counsel for all the parties, it is important to advert, first and foremost, to some of the documents that were involved in the original civil appeals before us. A sale deed dated 16.07.1962, which is of pivotal importance in the facts of this case, had made it clear that the property was in rectangular shape and was bounded, among other things, by a public proposed road on the north and vacant Government land on the south and the west. If the map appended to the Compliance Report is to be seen, the description of this property would accord with TS No. 19/P which is marked by the letters ‘PQRS? and which has been alloted to Andhra Prabha publications.8. In addition, if the Urban Land Ceiling Authority?s order of 27.06.2000, declaring part of this land surplus, is also to be seen, the aforesaid order makes it clear that plot No. 129/45/D is contained in TS No. 19/2 and is described as Surplus Vacant Land (it is not disputed that the land which falls under TS No. 17/2 and which admeasures 2 acres 22½ gunthas is heavily built up with buildings having been constructed in the 1980s). Also, the said Urban Land Ceiling order has specifically held that the land on which plot No. 129/45/D stood did not involve any Government land, it being privately owned.9. However, Shri K. Radhakrishanan, learned senior counsel appearing on behalf of the Government, read to us in extenso the reply affidavit filed on behalf of the State of Telangana dated 03.09.2019 in which, after going into the history of the Town Planning Survey of this area, it is specifically stated that the land allotted to Andhra Prabha publications is classified as a Government land which is vacant and different from the land in Survey No. 129/45/D. We have seen from the description of this land in the sale deed of 1962 as well as in the competent authority?s order dated 27.06.2000 that this would be wholly incorrect inasmuch as this land is clearly not a Government land.10. It was also brought to our notice by Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of Andhra Prabha publications, that averments were made by an affidavit of 2006 by the appellants in the original case stating that Survey No.129/45/D was distinct from Survey No. 403 and that being so distinct, they should not be allowed to turn around and argue to the contrary. He also argued that the aforesaid land really could not be stated to be in existence, as was mentioned in the first Survey Report.11. We are afraid that neither of these contentions is open to the learned counsel in view of our judgment dated 27.02.2019 disposing of the review petition before us.12. Ordinarily, we would have relegated the original appellants before us to challenge the Report that has now been filed in compliance with our Review Order. However, we find a reluctance on the part of the authorities to part with this land as it is extremely valuable. We have found how, in the earlier round of proceedings, they have taken various conflicting stands as to whether the land was originally evacuee property or otherwise. We also find that in the first Survey that was done pursuant to the learned Single Judge?s judgment, there was a great reluctance to part with this land which is why the aforesaid Survey Report wrongly stated that such land does not at all exist. It is only at the repeated insistence of this Court that finally a Survey Report has now located the land, but not where it actually exists. The reason is not far to seek - because if, as per the map appended to the present Report, the land marked A, B, C was to be handed over to the appellants, it would be land which is heavily built up and of no use, whatsoever, to the appellants.
### Response:
0
### Explanation:
We have seen from the description of this land in the sale deed of 1962 as well as in the competent authority?s order dated 27.06.2000 that this would be wholly incorrect inasmuch as this land is clearly not a Government land.We are afraid that neither of these contentions is open to the learned counsel in view of our judgment dated 27.02.2019 disposing of the review petition before us.12. Ordinarily, we would have relegated the original appellants before us to challenge the Report that has now been filed in compliance with our Review Order. However, we find a reluctance on the part of the authorities to part with this land as it is extremely valuable. We have found how, in the earlier round of proceedings, they have takenvarious conflicting stands as to whether the land was originally evacuee property or otherwise. We also find that in the first Survey that was done pursuant to the learned Single Judge?s judgment, there was a great reluctance to part with this land which is why the aforesaid Survey Report wrongly stated that such land does not at all exist. It is only at the repeated insistence of this Court that finally a Survey Report has now located the land, but not where it actually exists. The reason is not far to seek - because if, as per the map appended to the present Report, the land marked A, B, C was to be handed over to the appellants, it would be land which is heavily built up and of no use, whatsoever, to the appellants.
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Ferozi Lal Jain Vs. Man Mal & Another | Hegde, J1. In this execution appeal by special leave the only question that arises for decision is whether the decree under execution is a nullity as held by the High Court as well as by the courts below.2. The appellant is the owner of Shop No. 4682, Plot No. 21, Daryanganj, Delhi. He leased out that shop to the 1st respondent on November 8, 1953. One of the terms of the lease was that the 1st respondent should not sub-let the shop. On the allegation that the 1st respondent has sub-let the shop to the second respondent, the appellant brought a suit in the court of Sub-Judge, 1st Class, Delhi for the eviction of the respondents, under Section 13 of the Delhi and Ajmer Rent Control Act, 1952 (to be hereinafter referred to as the Rent Control Act). The respondent denied the sub-lease alleged by the appellant. Their case was that the second respondent was a partner of the 1st respondent. During the pendency of the trial of the suit, the appellant and the 1st respondent entered into a compromise on the basis of which a compromise decree was passed by the court. The compromise petition does not make any reference to the alleged sub-lease. The order made by the court in that connection reads thus:"As per compromise, decree for ejectment and for Rs. 165 with proportionate costs is passed in favour of the plaintiff and against the defendant. The parties shall be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree-sheet. Orders pronounced.Dated the 4th March, 1965."3. Under the terms of the compromise, the 1st respondent was given four years time from the date of the compromise decree for delivering possession of the suit premises. At the end of the said four years, the appellant attempted to execute the decree. At that stage, the second respondent resisted the execution contending that he is not bound by the decree. Thereafter there was a second compromise between the appellant and the 2nd respondent, under the terms of which the second respondent was given time till February 28, 1963 to vacate the premises. At the expiry of that period, the appellant again levied execution. The second respondent again resisted the execution on various grounds, one of which was that the decree having been passed in contravention of Section 13 of the Rent Control Act, the same is a nullity and as such it is not executable. This contention was accepted by the execution court, the appellate court as well as by the High Court.4. Section 13 of the Rent Control Act provides for the protection of a tenant against eviction. The material portion of Section 13 (1), the clause relevant for our present purpose reads:"Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied.......(b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act............(i) sublet, assigned or otherwise parted with the possession of, the whole or any part of the premises.........."(emphasis (here in") supplied)5. From this provision, it is clear that after the Rent Control Act came into force, a decree for recovery of possession can be passed by any court only if that court is satisfied that one or more of the grounds mentioned in Sec. 13 (1) are established. Without such a satisfaction, the court is incompetent to pass a decree for possession. In other words, the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved.6. From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied.It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.7. Our conclusion in this regard is supported by the decisions of this Court in Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432 and Smt. Kaushalya Devi v. K. L. Bansal, Civil Appeal No. 98 of 1966, D/- 3-12-1968 (SC). In the former case the decree under execution was made on the basis of an award and in the latter case, it was passed on a compromise. In both the cases this Court held that as the decrees in question were passed in contravention of Section 13 (1) of the Rent Control Act, they were void and hence no execution can be levied on the basis of those decrees. | 0[ds]6. From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied.It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.7. Our conclusion in this regard is supported by the decisions of this Court in Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432 and Smt. Kaushalya Devi v. K. L. Bansal, Civil Appeal No. 98 of 1966, D/(SC). In the former case the decree under execution was made on the basis of an award and in the latter case, it was passed on a compromise. In both the cases this Court held that as the decrees in question were passed in contravention of Section 13 (1) of the Rent Control Act, they were void and hence no execution can be levied on the basis of those decrees. | 0 | 1,018 | 258 | ### 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:
Hegde, J1. In this execution appeal by special leave the only question that arises for decision is whether the decree under execution is a nullity as held by the High Court as well as by the courts below.2. The appellant is the owner of Shop No. 4682, Plot No. 21, Daryanganj, Delhi. He leased out that shop to the 1st respondent on November 8, 1953. One of the terms of the lease was that the 1st respondent should not sub-let the shop. On the allegation that the 1st respondent has sub-let the shop to the second respondent, the appellant brought a suit in the court of Sub-Judge, 1st Class, Delhi for the eviction of the respondents, under Section 13 of the Delhi and Ajmer Rent Control Act, 1952 (to be hereinafter referred to as the Rent Control Act). The respondent denied the sub-lease alleged by the appellant. Their case was that the second respondent was a partner of the 1st respondent. During the pendency of the trial of the suit, the appellant and the 1st respondent entered into a compromise on the basis of which a compromise decree was passed by the court. The compromise petition does not make any reference to the alleged sub-lease. The order made by the court in that connection reads thus:"As per compromise, decree for ejectment and for Rs. 165 with proportionate costs is passed in favour of the plaintiff and against the defendant. The parties shall be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree-sheet. Orders pronounced.Dated the 4th March, 1965."3. Under the terms of the compromise, the 1st respondent was given four years time from the date of the compromise decree for delivering possession of the suit premises. At the end of the said four years, the appellant attempted to execute the decree. At that stage, the second respondent resisted the execution contending that he is not bound by the decree. Thereafter there was a second compromise between the appellant and the 2nd respondent, under the terms of which the second respondent was given time till February 28, 1963 to vacate the premises. At the expiry of that period, the appellant again levied execution. The second respondent again resisted the execution on various grounds, one of which was that the decree having been passed in contravention of Section 13 of the Rent Control Act, the same is a nullity and as such it is not executable. This contention was accepted by the execution court, the appellate court as well as by the High Court.4. Section 13 of the Rent Control Act provides for the protection of a tenant against eviction. The material portion of Section 13 (1), the clause relevant for our present purpose reads:"Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied.......(b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act............(i) sublet, assigned or otherwise parted with the possession of, the whole or any part of the premises.........."(emphasis (here in") supplied)5. From this provision, it is clear that after the Rent Control Act came into force, a decree for recovery of possession can be passed by any court only if that court is satisfied that one or more of the grounds mentioned in Sec. 13 (1) are established. Without such a satisfaction, the court is incompetent to pass a decree for possession. In other words, the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved.6. From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied.It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.7. Our conclusion in this regard is supported by the decisions of this Court in Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432 and Smt. Kaushalya Devi v. K. L. Bansal, Civil Appeal No. 98 of 1966, D/- 3-12-1968 (SC). In the former case the decree under execution was made on the basis of an award and in the latter case, it was passed on a compromise. In both the cases this Court held that as the decrees in question were passed in contravention of Section 13 (1) of the Rent Control Act, they were void and hence no execution can be levied on the basis of those decrees.
### Response:
0
### Explanation:
6. From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied.It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity.7. Our conclusion in this regard is supported by the decisions of this Court in Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432 and Smt. Kaushalya Devi v. K. L. Bansal, Civil Appeal No. 98 of 1966, D/(SC). In the former case the decree under execution was made on the basis of an award and in the latter case, it was passed on a compromise. In both the cases this Court held that as the decrees in question were passed in contravention of Section 13 (1) of the Rent Control Act, they were void and hence no execution can be levied on the basis of those decrees.
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Eveready Industries India Ltd Vs. State of Karnataka | specified in Notification No. FD 239 CSL 90(I) dated 19th June 1991 issued under Section 8-A of the Karnataka Sales Tax Act, 1957 for claiming exemption under that notification shall mutatis mutandis apply to a industrial unit claiming exemption under notification.? 6. Reading of the aforesaid definition clearly suggests that ?a new industrial unit? is given the same meaning which is assigned in the notification dated 19.06.1991. For this purpose, one needs to look into the meaning that is given to ?a new industrial unit? in the notification dated 21.06.1991. A scan through the said notification leads us to the definition given to a ?new industrial unit?. We reproduce this Explanation in its entirety: ?Explanation I. ? (a) For the purpose of this Notification; (i) A ?Tiny Industrial Unit? or ?Small Scale Industrial Unit? or ?Medium Scale Industrial Unit? or ?Large Scale Industrial Unit? means a unit which is registered as such with the Director of Industries and Commerce or the Ministry of Industries, Government of India. (ii) A Khadi and Village Industrial Unit as defined under the Karnataka Khadi & Village Industries Act, 1956 from time to time. [See Note 3] (b) ?A New Industrial Unit? means any of the units described in Clause (a) above, which are certified to be eligible for exemption under this Notification, by the authorities mentioned in Clauses (a) and (b) of Para (1) under ?Procedure? below.? 7. In order to qualify to be ?A New Industrial Unit?, the following conditions need to be fulfilled: (i) It has to be either a Tiny Industrial Unit or Small Scale Industrial Unit or Medium Scale Industrial Unit or Large Scale Industrial Unit of the type of industries mentioned in Table contained in notification dated 21.06.1991 or else it has to be a Khadi or Village Industrial Units as defined under the Karnataka Khadi & Village Industries Act, 1956. (We are not concerned with this later category in the present case.) (ii) Such a Unit has to be registered with the Director of Industries and Commerce or the Ministry of Industries, Government of India. (iii) Such a Unit has to be certified to be eligible for exemption under the said notification by the authorities mentioned therein. 8. What is significant for our purposes is that such a Unit has to be certified to be eligible for exemption under the notification dated 21.06.1991. That is an essential requirement for a Unit to fall within the definition of ?A New Industrial Unit? under the notification dated 31.03.1993 as it is assigned the same meaning as contained in the notification dated 21.06.1991. Notification dated 31.03.1993 further makes it clear that this notification is not to apply to a Unit to which notification dated 19.06.1991 does not apply. So much so, the procedure prescribed in the notification dated 19.06.1991 for claiming exemption is also made applicable to the Industrial Units seeking exemption under the notification dated 31.03.1993. In the instant case, it was admitted by the appellant itself that the Department of Industries and Commerce issued eligibility certificate in terms of industrial policy G.O. No. CI 30 SPC 96 dated 15.03.1996 and notification dated 15.11.1996 issued under Section 19-C of the KST Act. Such eligibility certificate would not be of any consequence in as much as, in order to get the benefit of the notification dated 31.03.1993, the appellant was required to get certification under the notification dated 19.06.1991. Obviously, therefore, the appellant does not fulfill the requirement of the notification dated 31.03.1993 as well. 9. It is trite that exemption notifications require strict interpretation. In order to get benefit of any exemption notification, assessee has to satisfy that it fulfills all the conditions contained in the notification This is so held by this Court in Rajasthan Spinning and Weaving Mills, Bhilwara, Rajasthan v. Collector of Central Excise, Jaipur, Rajasthan (1995) 4 SCC 473 ), wherein this principle was stated in the following manner: ?16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since, it is a case of exemption from duty, there is no question of any liberal construction to extent the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification.? 10. In Novopan India Ltd. v. CCE and Customs (1994 Supp. (3) SCC 606), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs (1969) 2 SCR 253 : AIR 1970 SC 755 ) held that (Novopan India Ltd. Case, SCC p. 614, para 16): ?16...such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption.? 11. It is a different matter that once the conditions contained in the exemption notification are satisfied and the assessee gets covered by the exemption notification, for the purpose of giving benefit notification has to be construed liberally. However, in the present case, the appellant has not been able to cross the threshold and to find entry under notification dated 31.03.1993 for the reasons mentioned above. Therefore, we have no option but to hold that the appellant was not entitled to exemption from entry tax. | 0[ds]Though, various arguments have been discussed by the High Court in the impugned judgment, a perusal of the judgment of the High Court would reflect that these arguments were advanced by the appellant to contend that it was not liable to pay entry tax under the Entry Tax Act and was entitled to exemption in terms of general Notification dated 31.03.1993. The High Court has rejected the plea by holding that due to amendment of notification dated 19.06.1991 by notification dated 31.03.1993, the appellant was excluded from getting the benefit of general Notification. In this behalf, it has concluded that subsequent insertion of clause (g) to Explanation III of notification dated 19.06.1991 was applicable to the general exemption issued under Sectionof Entry Tax Act. While so holding, the High Court has made a distinction between legislation by reference and legislation by incorporation and has held that in case of legislation by reference of subsequent amendments to the legislation referred to will become applicable whereas in case of legislation by incorporation, subsequent amendments to the legislation referred to do not apply. As per the High Court, in the present case, there was legislation by reference and not by incorporation and, therefore, the newly inserted clause (g) to Notification dated 19.06.1991 would be applicable while implementing general exemption notification dated 31.03.1993. The aforesaid principle stated by the High Court in the impugned judgment was severely criticised and attacked by the learned counsel for the appellant on the ground that in the present case there was legislation by incorporation and not by reference. However, we feel that it may not even be necessary to go into this aspect, having regard to the discussion that follows hereinafter.4. As pointed out above, the order dated 25.06.1997 was passed granting exemption to the appellant from payment of entry tax on raw materials and component parts for a period of six years from the date of commencement of commercial products. However, it was subject to the condition that the appellant should make an investment in the sum of Rs.111 crores in order to enable itself to claim the benefit of the aforesaid notification. It is an admitted fact that due to certain reasons, the appellant could not fulfill this condition as it did not invest Rs.111 crores in the project, as envisaged in the notification dated 25.06.1997. Therefore, insofar as exemption notification dated 25.06.1997 which was issued specifically in the case of the appellant, the appellant cannot be held entitled to the benefit thereof as it failed to fulfill the conditions.5. The appellant, however, still claims the exemption by virtue of general Notification dated 31.03.1993 issued under the Entry Tax Act. This notification was issued under Section 11A of the Entry Tax Act. Vide this notification, the Government of Karnataka exempted the tax payable under the Entry Tax Act on the entry of raw materials, component parts and inputs and machinery and its parts into a local area for use in the manufacture of an immediate or finished product by the new industrial units. This notification contains a Table which enlists type of industries and location of industries which are entitled to exemption as well as the period of exemption. It is not in dispute that the appellant industry stands covered by one such category of industry the description whereof is given in the notification. It is also located at a place which is stipulated in the said notification. However, the exemption was available to the new Industrial Units.Reading of the aforesaid definition clearly suggests that ?a new industrial unit? is given the same meaning which is assigned in the notification dated 19.06.1991. For this purpose, one needs to look into the meaning that is given to ?a new industrial unit? in the notification dated 21.06.1991. A scan through the said notification leads us to the definition given to a ?new industrial unit?.What is significant for our purposes is that such a Unit has to be certified to be eligible for exemption under the notification dated 21.06.1991. That is an essential requirement for a Unit to fall within the definition of ?A New Industrial Unit? under the notification dated 31.03.1993 as it is assigned the same meaning as contained in the notification dated 21.06.1991. Notification dated 31.03.1993 further makes it clear that this notification is not to apply to a Unit to which notification dated 19.06.1991 does not apply. So much so, the procedure prescribed in the notification dated 19.06.1991 for claiming exemption is also made applicable to the Industrial Units seeking exemption under the notification dated 31.03.1993. In the instant case, it was admitted by the appellant itself that the Department of Industries and Commerce issued eligibility certificate in terms of industrial policy G.O. No. CI 30 SPC 96 dated 15.03.1996 and notification dated 15.11.1996 issued under Sectionof the KST Act. Such eligibility certificate would not be of any consequence in as much as, in order to get the benefit of the notification dated 31.03.1993, the appellant was required to get certification under the notification dated 19.06.1991. Obviously, therefore, the appellant does not fulfill the requirement of the notification dated 31.03.1993 as well.It is a different matter that once the conditions contained in the exemption notification are satisfied and the assessee gets covered by the exemption notification, for the purpose of giving benefit notification has to be construed liberally. However, in the present case, the appellant has not been able to cross the threshold and to find entry under notification dated 31.03.1993 for the reasons mentioned above. Therefore, we have no option but to hold that the appellant was not entitled to exemption from entry tax. | 0 | 2,974 | 1,022 | ### 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:
specified in Notification No. FD 239 CSL 90(I) dated 19th June 1991 issued under Section 8-A of the Karnataka Sales Tax Act, 1957 for claiming exemption under that notification shall mutatis mutandis apply to a industrial unit claiming exemption under notification.? 6. Reading of the aforesaid definition clearly suggests that ?a new industrial unit? is given the same meaning which is assigned in the notification dated 19.06.1991. For this purpose, one needs to look into the meaning that is given to ?a new industrial unit? in the notification dated 21.06.1991. A scan through the said notification leads us to the definition given to a ?new industrial unit?. We reproduce this Explanation in its entirety: ?Explanation I. ? (a) For the purpose of this Notification; (i) A ?Tiny Industrial Unit? or ?Small Scale Industrial Unit? or ?Medium Scale Industrial Unit? or ?Large Scale Industrial Unit? means a unit which is registered as such with the Director of Industries and Commerce or the Ministry of Industries, Government of India. (ii) A Khadi and Village Industrial Unit as defined under the Karnataka Khadi & Village Industries Act, 1956 from time to time. [See Note 3] (b) ?A New Industrial Unit? means any of the units described in Clause (a) above, which are certified to be eligible for exemption under this Notification, by the authorities mentioned in Clauses (a) and (b) of Para (1) under ?Procedure? below.? 7. In order to qualify to be ?A New Industrial Unit?, the following conditions need to be fulfilled: (i) It has to be either a Tiny Industrial Unit or Small Scale Industrial Unit or Medium Scale Industrial Unit or Large Scale Industrial Unit of the type of industries mentioned in Table contained in notification dated 21.06.1991 or else it has to be a Khadi or Village Industrial Units as defined under the Karnataka Khadi & Village Industries Act, 1956. (We are not concerned with this later category in the present case.) (ii) Such a Unit has to be registered with the Director of Industries and Commerce or the Ministry of Industries, Government of India. (iii) Such a Unit has to be certified to be eligible for exemption under the said notification by the authorities mentioned therein. 8. What is significant for our purposes is that such a Unit has to be certified to be eligible for exemption under the notification dated 21.06.1991. That is an essential requirement for a Unit to fall within the definition of ?A New Industrial Unit? under the notification dated 31.03.1993 as it is assigned the same meaning as contained in the notification dated 21.06.1991. Notification dated 31.03.1993 further makes it clear that this notification is not to apply to a Unit to which notification dated 19.06.1991 does not apply. So much so, the procedure prescribed in the notification dated 19.06.1991 for claiming exemption is also made applicable to the Industrial Units seeking exemption under the notification dated 31.03.1993. In the instant case, it was admitted by the appellant itself that the Department of Industries and Commerce issued eligibility certificate in terms of industrial policy G.O. No. CI 30 SPC 96 dated 15.03.1996 and notification dated 15.11.1996 issued under Section 19-C of the KST Act. Such eligibility certificate would not be of any consequence in as much as, in order to get the benefit of the notification dated 31.03.1993, the appellant was required to get certification under the notification dated 19.06.1991. Obviously, therefore, the appellant does not fulfill the requirement of the notification dated 31.03.1993 as well. 9. It is trite that exemption notifications require strict interpretation. In order to get benefit of any exemption notification, assessee has to satisfy that it fulfills all the conditions contained in the notification This is so held by this Court in Rajasthan Spinning and Weaving Mills, Bhilwara, Rajasthan v. Collector of Central Excise, Jaipur, Rajasthan (1995) 4 SCC 473 ), wherein this principle was stated in the following manner: ?16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since, it is a case of exemption from duty, there is no question of any liberal construction to extent the term and the scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification.? 10. In Novopan India Ltd. v. CCE and Customs (1994 Supp. (3) SCC 606), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs (1969) 2 SCR 253 : AIR 1970 SC 755 ) held that (Novopan India Ltd. Case, SCC p. 614, para 16): ?16...such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption.? 11. It is a different matter that once the conditions contained in the exemption notification are satisfied and the assessee gets covered by the exemption notification, for the purpose of giving benefit notification has to be construed liberally. However, in the present case, the appellant has not been able to cross the threshold and to find entry under notification dated 31.03.1993 for the reasons mentioned above. Therefore, we have no option but to hold that the appellant was not entitled to exemption from entry tax.
### Response:
0
### Explanation:
Though, various arguments have been discussed by the High Court in the impugned judgment, a perusal of the judgment of the High Court would reflect that these arguments were advanced by the appellant to contend that it was not liable to pay entry tax under the Entry Tax Act and was entitled to exemption in terms of general Notification dated 31.03.1993. The High Court has rejected the plea by holding that due to amendment of notification dated 19.06.1991 by notification dated 31.03.1993, the appellant was excluded from getting the benefit of general Notification. In this behalf, it has concluded that subsequent insertion of clause (g) to Explanation III of notification dated 19.06.1991 was applicable to the general exemption issued under Sectionof Entry Tax Act. While so holding, the High Court has made a distinction between legislation by reference and legislation by incorporation and has held that in case of legislation by reference of subsequent amendments to the legislation referred to will become applicable whereas in case of legislation by incorporation, subsequent amendments to the legislation referred to do not apply. As per the High Court, in the present case, there was legislation by reference and not by incorporation and, therefore, the newly inserted clause (g) to Notification dated 19.06.1991 would be applicable while implementing general exemption notification dated 31.03.1993. The aforesaid principle stated by the High Court in the impugned judgment was severely criticised and attacked by the learned counsel for the appellant on the ground that in the present case there was legislation by incorporation and not by reference. However, we feel that it may not even be necessary to go into this aspect, having regard to the discussion that follows hereinafter.4. As pointed out above, the order dated 25.06.1997 was passed granting exemption to the appellant from payment of entry tax on raw materials and component parts for a period of six years from the date of commencement of commercial products. However, it was subject to the condition that the appellant should make an investment in the sum of Rs.111 crores in order to enable itself to claim the benefit of the aforesaid notification. It is an admitted fact that due to certain reasons, the appellant could not fulfill this condition as it did not invest Rs.111 crores in the project, as envisaged in the notification dated 25.06.1997. Therefore, insofar as exemption notification dated 25.06.1997 which was issued specifically in the case of the appellant, the appellant cannot be held entitled to the benefit thereof as it failed to fulfill the conditions.5. The appellant, however, still claims the exemption by virtue of general Notification dated 31.03.1993 issued under the Entry Tax Act. This notification was issued under Section 11A of the Entry Tax Act. Vide this notification, the Government of Karnataka exempted the tax payable under the Entry Tax Act on the entry of raw materials, component parts and inputs and machinery and its parts into a local area for use in the manufacture of an immediate or finished product by the new industrial units. This notification contains a Table which enlists type of industries and location of industries which are entitled to exemption as well as the period of exemption. It is not in dispute that the appellant industry stands covered by one such category of industry the description whereof is given in the notification. It is also located at a place which is stipulated in the said notification. However, the exemption was available to the new Industrial Units.Reading of the aforesaid definition clearly suggests that ?a new industrial unit? is given the same meaning which is assigned in the notification dated 19.06.1991. For this purpose, one needs to look into the meaning that is given to ?a new industrial unit? in the notification dated 21.06.1991. A scan through the said notification leads us to the definition given to a ?new industrial unit?.What is significant for our purposes is that such a Unit has to be certified to be eligible for exemption under the notification dated 21.06.1991. That is an essential requirement for a Unit to fall within the definition of ?A New Industrial Unit? under the notification dated 31.03.1993 as it is assigned the same meaning as contained in the notification dated 21.06.1991. Notification dated 31.03.1993 further makes it clear that this notification is not to apply to a Unit to which notification dated 19.06.1991 does not apply. So much so, the procedure prescribed in the notification dated 19.06.1991 for claiming exemption is also made applicable to the Industrial Units seeking exemption under the notification dated 31.03.1993. In the instant case, it was admitted by the appellant itself that the Department of Industries and Commerce issued eligibility certificate in terms of industrial policy G.O. No. CI 30 SPC 96 dated 15.03.1996 and notification dated 15.11.1996 issued under Sectionof the KST Act. Such eligibility certificate would not be of any consequence in as much as, in order to get the benefit of the notification dated 31.03.1993, the appellant was required to get certification under the notification dated 19.06.1991. Obviously, therefore, the appellant does not fulfill the requirement of the notification dated 31.03.1993 as well.It is a different matter that once the conditions contained in the exemption notification are satisfied and the assessee gets covered by the exemption notification, for the purpose of giving benefit notification has to be construed liberally. However, in the present case, the appellant has not been able to cross the threshold and to find entry under notification dated 31.03.1993 for the reasons mentioned above. Therefore, we have no option but to hold that the appellant was not entitled to exemption from entry tax.
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UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD | decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1 | 19,125 | 3,844 | ### 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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decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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M/s. Ganesh Flour Mills Co. Ltd Vs. Employees of M/s. Ganesh Flour Mills Co. Ltd | erroneous in law and it needs to be corrected. If any of these debts are fortunately recovered in subsequent years they would no doubt be credited when they are so recovered. Indeed in the relevant year itself Rs. 12,028 which had been shown as an item of bad debt in the previous year has been credited because it has been recovered.We must accordingly hold that the tribunals below erred in law in not accepting the argument of the appellant that, for determining the gross profits, the amount of irrecoverable debts must be deducted.11. It would thus appear to be clear that, if the amount of gross profits found by the Labour Appellate Tribunal is reduced after deducting from it the amount of Rs. 1,47,289 as bad debts and if an allowance is made as a prior charge for Rs. 69,324 as interest on preference shares, it would be difficult to hold that there is any surplus worth the name which is available for distribution by way of bonus amongst employees.12. The position then would be that the cash available would consist of cash in hand Rs. 14,576-2-4 and the amount with the bankers in India Rs. 1,52,285. This total comes to Rs. 1,66,861-2-4. From this amount Rs. 1,47,289 must be deducted as bad and irrecoverable debts and Rs. 69,324 must likewise be deducted as interest on preference shares which have a prior charge. Unfortunately the tribunals below did not take into account the fact that, if the evidence of Shri Sharma was believed in regard to the difficulties experienced by the appellant in bringing over to India cash locked up in Pakistan, they could not have logically reached the conclusion that there was any surplus actually available to the appellant for distribution amongst the employees. There is on paper a fairly large amount of surplus available but in point of fact this surplus is not actually available to the employer for the relevant year and, so far as the recorded shows, is not shown to be likely to be available to him in the near future. That is why we think that, even if the claim for bonus is considered on the basis that the business carried on by the appellant in India as well as in Pakistan constitutes one business, it would be difficult to uphold the conclusion of the Labour Appellate Tribunal that there was any surplus available during the relevant period or was likely to be available in the near future from which bonus could be paid to the employees.13. There remain three more points which have been urged by the learned Attorney-General before us and to which brief reference may be made. It appears that the appellant had claimed an allowance for Rs. 10,29,800 as a prior charge in respect of rehabilitation charges for the relevant year. The whole of this claim has been rejected by the tribunal below on the ground that sufficient material had not been placed by the appellant in support of its claim. The learned Attorney-General conceded that it would have been much better if the appellant had led more satisfactory evidence in support of this claim; but he argued that it was not right to treat the evidence produced by the appellant as wholly insufficient and in any case, according to him, refusal to allow any amount in respect of rehabilitation charges was not justified. It is true that the present appellant company itself had been similarly penalised by the Labour Appellate Tribunal in Ganesh Flour Mills Co. Ltd., Kanpur v. Ganesh Flour Mills Staff Union, Kanpur, (1952) 1 Lap AC 172 (M) and that naturally makes the refault of the appellant in leading satisfactory evidence more glaring; but, on the other hand, reasonable rehabilitation charges have been consistently assigned the position of a prior charge in determining the available surplus in cases where claims are made by workmen for bonus. If it had been necessary to decide this point in the present appeal we might have had to consider whether, subject to such terms as to costs as we might have deemed fit to impose, an opportunity should not be given to the appellant to lead more satisfactory evidence in support of the item claimed by the appellant under the heading of rehabilitation charges. As has been held by the Labour Appellate Tribunal in M/s., Singh Plate Mills Ltd. v., The Workmen of M/s. Singh Plate Mills Limited etc. 1955 Lab AC 216 (N), the data necessary for the computation of the rehabilitation charges are:"(a) Dates of purchases of machinery or of erection of building, as the case may be, together with the costs incurred for the same;(b) The number of shifts for which this concern has been working;(c) The existing depreciation fund and evidence as to the life of the machinery and the building. Higher depreciation charges are allowed where a Factory works for three shifts".We have looked at the evidence of Shri Kapur to which our attention was invited by the learned Attorney-General and we are prepared to agree with the view taken by the tribunals below that this evidence is not satisfactory; but the appellants argument is that the penalty visited on the appellant for his failure to lead more satisfactory evidence is unduly severe. However, in view of the conclusion which we have reached in this appeal we do not think it necessary to pursue this point any further.14. The learned Attorney-General has also contended in this appeal that the appellate tribunal has erred in awarding interest at 5% on the paid-up capital and at 2% on the reserves employed as working capital. We do not think it necessary to deal with these points also.15. The result is that the conclusion of the Labour Appellate Tribunal that a surplus of Rs. 9,61,371 was available for distribution during the relevant period or would have become available within a reasonable time thereafter cannot be sustained in view of their own appreciation of the evidence led in the case. | 1[ds]6.The question thus raised by the parties before us is no doubt of some importance; but we do not think it necessary to decide this question in the present appeal because we have reached the conclusion that even assuming that the business carried on by the appellant in India as well as in Pakistan is treated as one unit, and even if the consolidated statement of profit and loss account is taken as the sole guide for deciding whether the appellant holds in his hands net surplus available for distribution, it would be difficult to sustain the award passed by the tribunals below in favour of the respondents.e next point which is urged by the learnedis in respect of the failure of the Labour Appellate Tribunal to make allowance for any interest on the preference shares.shares.10. Then it is urged that the tribunals below erred in law in not taking into account bad debts shown in the accounts of the appellant. In the accounts of the appellant Rs. 1,47,289 are shown as bad and irrecoverable debts.On this point again, both the tribunals below have not held that the relevant entry in the books of account has been made with the intention of defeating the employees claim for bonus. The argument urged by the appellant in respect of these bad debts appears to have been misunderstood by the tribunals below. They appear to have assumed that the appellant claimed that bad debts should be treated as having a prior charge in determining the amount of surplus available for distribution and it is stated in both the judgments that no further addition can be made in the list of items which can be regarded as prior charges in determining the appellants surplus. It was not the appellants case that bad debts should be a prior chare at all. The appellants case was that, if the debts were irrecoverable they would, to that extent, reduce the gross profits. In our opinion, the failure of the tribunals below to appreciate correctly the contention raised by the appellant in this behalf has led to a finding which is erroneous in law and it needs to be corrected. If any of these debts are fortunately recovered in subsequent years they would no doubt be credited when they are so recovered. Indeed in the relevant year itself Rs. 12,028 which had been shown as an item of bad debt in the previous year has been credited because it has been recovered.We must accordingly hold that the tribunals below erred in law in not accepting the argument of the appellant that, for determining the gross profits, the amount of irrecoverable debts must be deducted.11. It would thus appear to be clear that, if the amount of gross profits found by the Labour Appellate Tribunal is reduced after deducting from it the amount of Rs. 1,47,289 as bad debts and if an allowance is made as a prior charge for Rs. 69,324 as interest on preference shares, it would be difficult to hold that there is any surplus worth the name which is available for distribution by way of bonus amongst employees.employees.13. There remain three more points which have been urged by the learnedbefore us and to which brief reference may be made. It appears that the appellant had claimed an allowance for Rs. 10,29,800 as a prior charge in respect of rehabilitation charges for the relevant year. The whole of this claim has been rejected by the tribunal below on the ground that sufficient material had not been placed by the appellant in support of its claim. The learnedconceded that it would have been much better if the appellant had led more satisfactory evidence in support of this claim; but he argued that it was not right to treat the evidence produced by the appellant as wholly insufficient and in any case, according to him, refusal to allow any amount in respect of rehabilitation charges was not justified. It is true that the present appellant company itself had been similarly penalised by the Labour Appellate Tribunal in Ganesh Flour Mills Co. Ltd., Kanpur v. Ganesh Flour Mills Staff Union, Kanpur, (1952) 1 Lap AC 172 (M) and that naturally makes the refault of the appellant in leading satisfactory evidence more glaring; but, on the other hand, reasonable rehabilitation charges have been consistently assigned the position of a prior charge in determining the available surplus in cases where claims are made by workmen for bonus. If it had been necessary to decide this point in the present appeal we might have had to consider whether, subject to such terms as to costs as we might have deemed fit to impose, an opportunity should not be given to the appellant to lead more satisfactory evidence in support of the item claimed by the appellant under the heading of rehabilitation charges.The position then would be that the cash available would consist of cash in hand Rs.and the amount with the bankers in India Rs. 1,52,285. This total comes to Rs.ral has also contended in this appeal that the appellate tribunal has erred in awarding interest at 5% on thel and at 2% on the reserves employed as working capital.We do not think it necessary to deal with these points also.15. The result is that the conclusion of the Labour Appellate Tribunal that a surplus of Rs. 9,61,371 was available for distribution during the relevant period or would have become available within a reasonable time thereafter cannot be sustained in view of their own appreciation of the evidence led in the case. | 1 | 6,014 | 990 | ### 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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erroneous in law and it needs to be corrected. If any of these debts are fortunately recovered in subsequent years they would no doubt be credited when they are so recovered. Indeed in the relevant year itself Rs. 12,028 which had been shown as an item of bad debt in the previous year has been credited because it has been recovered.We must accordingly hold that the tribunals below erred in law in not accepting the argument of the appellant that, for determining the gross profits, the amount of irrecoverable debts must be deducted.11. It would thus appear to be clear that, if the amount of gross profits found by the Labour Appellate Tribunal is reduced after deducting from it the amount of Rs. 1,47,289 as bad debts and if an allowance is made as a prior charge for Rs. 69,324 as interest on preference shares, it would be difficult to hold that there is any surplus worth the name which is available for distribution by way of bonus amongst employees.12. The position then would be that the cash available would consist of cash in hand Rs. 14,576-2-4 and the amount with the bankers in India Rs. 1,52,285. This total comes to Rs. 1,66,861-2-4. From this amount Rs. 1,47,289 must be deducted as bad and irrecoverable debts and Rs. 69,324 must likewise be deducted as interest on preference shares which have a prior charge. Unfortunately the tribunals below did not take into account the fact that, if the evidence of Shri Sharma was believed in regard to the difficulties experienced by the appellant in bringing over to India cash locked up in Pakistan, they could not have logically reached the conclusion that there was any surplus actually available to the appellant for distribution amongst the employees. There is on paper a fairly large amount of surplus available but in point of fact this surplus is not actually available to the employer for the relevant year and, so far as the recorded shows, is not shown to be likely to be available to him in the near future. That is why we think that, even if the claim for bonus is considered on the basis that the business carried on by the appellant in India as well as in Pakistan constitutes one business, it would be difficult to uphold the conclusion of the Labour Appellate Tribunal that there was any surplus available during the relevant period or was likely to be available in the near future from which bonus could be paid to the employees.13. There remain three more points which have been urged by the learned Attorney-General before us and to which brief reference may be made. It appears that the appellant had claimed an allowance for Rs. 10,29,800 as a prior charge in respect of rehabilitation charges for the relevant year. The whole of this claim has been rejected by the tribunal below on the ground that sufficient material had not been placed by the appellant in support of its claim. The learned Attorney-General conceded that it would have been much better if the appellant had led more satisfactory evidence in support of this claim; but he argued that it was not right to treat the evidence produced by the appellant as wholly insufficient and in any case, according to him, refusal to allow any amount in respect of rehabilitation charges was not justified. It is true that the present appellant company itself had been similarly penalised by the Labour Appellate Tribunal in Ganesh Flour Mills Co. Ltd., Kanpur v. Ganesh Flour Mills Staff Union, Kanpur, (1952) 1 Lap AC 172 (M) and that naturally makes the refault of the appellant in leading satisfactory evidence more glaring; but, on the other hand, reasonable rehabilitation charges have been consistently assigned the position of a prior charge in determining the available surplus in cases where claims are made by workmen for bonus. If it had been necessary to decide this point in the present appeal we might have had to consider whether, subject to such terms as to costs as we might have deemed fit to impose, an opportunity should not be given to the appellant to lead more satisfactory evidence in support of the item claimed by the appellant under the heading of rehabilitation charges. As has been held by the Labour Appellate Tribunal in M/s., Singh Plate Mills Ltd. v., The Workmen of M/s. Singh Plate Mills Limited etc. 1955 Lab AC 216 (N), the data necessary for the computation of the rehabilitation charges are:"(a) Dates of purchases of machinery or of erection of building, as the case may be, together with the costs incurred for the same;(b) The number of shifts for which this concern has been working;(c) The existing depreciation fund and evidence as to the life of the machinery and the building. Higher depreciation charges are allowed where a Factory works for three shifts".We have looked at the evidence of Shri Kapur to which our attention was invited by the learned Attorney-General and we are prepared to agree with the view taken by the tribunals below that this evidence is not satisfactory; but the appellants argument is that the penalty visited on the appellant for his failure to lead more satisfactory evidence is unduly severe. However, in view of the conclusion which we have reached in this appeal we do not think it necessary to pursue this point any further.14. The learned Attorney-General has also contended in this appeal that the appellate tribunal has erred in awarding interest at 5% on the paid-up capital and at 2% on the reserves employed as working capital. We do not think it necessary to deal with these points also.15. The result is that the conclusion of the Labour Appellate Tribunal that a surplus of Rs. 9,61,371 was available for distribution during the relevant period or would have become available within a reasonable time thereafter cannot be sustained in view of their own appreciation of the evidence led in the case.
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1
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6.The question thus raised by the parties before us is no doubt of some importance; but we do not think it necessary to decide this question in the present appeal because we have reached the conclusion that even assuming that the business carried on by the appellant in India as well as in Pakistan is treated as one unit, and even if the consolidated statement of profit and loss account is taken as the sole guide for deciding whether the appellant holds in his hands net surplus available for distribution, it would be difficult to sustain the award passed by the tribunals below in favour of the respondents.e next point which is urged by the learnedis in respect of the failure of the Labour Appellate Tribunal to make allowance for any interest on the preference shares.shares.10. Then it is urged that the tribunals below erred in law in not taking into account bad debts shown in the accounts of the appellant. In the accounts of the appellant Rs. 1,47,289 are shown as bad and irrecoverable debts.On this point again, both the tribunals below have not held that the relevant entry in the books of account has been made with the intention of defeating the employees claim for bonus. The argument urged by the appellant in respect of these bad debts appears to have been misunderstood by the tribunals below. They appear to have assumed that the appellant claimed that bad debts should be treated as having a prior charge in determining the amount of surplus available for distribution and it is stated in both the judgments that no further addition can be made in the list of items which can be regarded as prior charges in determining the appellants surplus. It was not the appellants case that bad debts should be a prior chare at all. The appellants case was that, if the debts were irrecoverable they would, to that extent, reduce the gross profits. In our opinion, the failure of the tribunals below to appreciate correctly the contention raised by the appellant in this behalf has led to a finding which is erroneous in law and it needs to be corrected. If any of these debts are fortunately recovered in subsequent years they would no doubt be credited when they are so recovered. Indeed in the relevant year itself Rs. 12,028 which had been shown as an item of bad debt in the previous year has been credited because it has been recovered.We must accordingly hold that the tribunals below erred in law in not accepting the argument of the appellant that, for determining the gross profits, the amount of irrecoverable debts must be deducted.11. It would thus appear to be clear that, if the amount of gross profits found by the Labour Appellate Tribunal is reduced after deducting from it the amount of Rs. 1,47,289 as bad debts and if an allowance is made as a prior charge for Rs. 69,324 as interest on preference shares, it would be difficult to hold that there is any surplus worth the name which is available for distribution by way of bonus amongst employees.employees.13. There remain three more points which have been urged by the learnedbefore us and to which brief reference may be made. It appears that the appellant had claimed an allowance for Rs. 10,29,800 as a prior charge in respect of rehabilitation charges for the relevant year. The whole of this claim has been rejected by the tribunal below on the ground that sufficient material had not been placed by the appellant in support of its claim. The learnedconceded that it would have been much better if the appellant had led more satisfactory evidence in support of this claim; but he argued that it was not right to treat the evidence produced by the appellant as wholly insufficient and in any case, according to him, refusal to allow any amount in respect of rehabilitation charges was not justified. It is true that the present appellant company itself had been similarly penalised by the Labour Appellate Tribunal in Ganesh Flour Mills Co. Ltd., Kanpur v. Ganesh Flour Mills Staff Union, Kanpur, (1952) 1 Lap AC 172 (M) and that naturally makes the refault of the appellant in leading satisfactory evidence more glaring; but, on the other hand, reasonable rehabilitation charges have been consistently assigned the position of a prior charge in determining the available surplus in cases where claims are made by workmen for bonus. If it had been necessary to decide this point in the present appeal we might have had to consider whether, subject to such terms as to costs as we might have deemed fit to impose, an opportunity should not be given to the appellant to lead more satisfactory evidence in support of the item claimed by the appellant under the heading of rehabilitation charges.The position then would be that the cash available would consist of cash in hand Rs.and the amount with the bankers in India Rs. 1,52,285. This total comes to Rs.ral has also contended in this appeal that the appellate tribunal has erred in awarding interest at 5% on thel and at 2% on the reserves employed as working capital.We do not think it necessary to deal with these points also.15. The result is that the conclusion of the Labour Appellate Tribunal that a surplus of Rs. 9,61,371 was available for distribution during the relevant period or would have become available within a reasonable time thereafter cannot be sustained in view of their own appreciation of the evidence led in the case.
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New Delhi Municipal Committee Vs. Kalu Ram & Anr | recover the sum had expired. Admittedly any suit instituted on the date when the Estate Officer made his order under Section 7(1) would have been barred by time. Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act providing a different and special mode of recovery was, therefore, available to recover rent in arrears beyond three years. Section 7 as it stood at the relevant time reads:“7. Power to recover rent or damages in respect of Public premises as arrears of land revenue.(1) Where any person is in arrears of rent payable in respect of any public premises, the Estate Officer may by order, require that person to pay, the same within such time and in such instalments as may be specified in the order.(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may by order, require that person to pay the damages within such time and in such instalments as may be specified in the order:Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the Estate Officer.(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under Sub-section (1) or the damages or any installment thereof payable under Sub-section (2) within the time specified in the order relating thereto the Estate Officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrears of land revenue.”3. As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time-limit for taking steps under that Section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent’s objection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars remedy without touching the right. Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time, however, provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit for possession of any property arises and Section 28 has no application. It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitt him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statute permits such a course. Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time? Under Section 7 the Estate Officer may order any person who is arrears of rent payable in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before, however, the order is made, a notice must issue calling upon the defaulter to show cause why such order should not be made and, if he raised any objection, the Estate officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is ‘payable’. The word ‘payable’ is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. ‘Payable’ generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source of foundation of a right to claim a debt otherwise time-barred. Construing the expression “any money due” in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric Co. Ltd. that this meant moneys due and recoverable in a suit by the company, and observed:“It is a Section which creates a special procedure for obtaining payment of moneys: it is not a Section which purports to create a foundation upon which to base a claim for payment. It creates no new rights”.4. We are clear that the word “payable” in Section 7, in the context in which it occurs, means legally recoverable’. Admittedly a suit to recover the arrears instituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was, therefore irrecoverable.5. | 0[ds]would appear from the terms of the section, it provides aprocedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time-limit for taking steps under that Section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error inobjection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars remedy without touching the right. Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time, however, provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit forof any property arises and Section 28 has no application. It is notthat a creditor whose suit is barred by limitation, if he has any other legal remedy permitt him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statuteder Section 7 the Estate Officer may order any person who is arrears of rent payable in respect of anypremises to pay the same within such time and in such instalments as he may specify in the order. Before, however, the order is made, a notice must issue calling upon the defaulter to show cause why such order should not be made and, if he raised any objection, the Estate officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which isis somewhat indefinite in import and its meaning must be gathered from the context in which itly means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer inthe amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent themust be in accordance with law. Section 7 only provides a specialfor the realisation of rent in arrears and does not constitute aof foundation of a right to claim a debt otherwiseare clear that the wordin Section 7, in the context in which it occurs, means legallyAdmittedly a suit to recover theinstituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was, therefore | 0 | 1,546 | 531 | ### Instruction:
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### Input:
recover the sum had expired. Admittedly any suit instituted on the date when the Estate Officer made his order under Section 7(1) would have been barred by time. Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act providing a different and special mode of recovery was, therefore, available to recover rent in arrears beyond three years. Section 7 as it stood at the relevant time reads:“7. Power to recover rent or damages in respect of Public premises as arrears of land revenue.(1) Where any person is in arrears of rent payable in respect of any public premises, the Estate Officer may by order, require that person to pay, the same within such time and in such instalments as may be specified in the order.(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may by order, require that person to pay the damages within such time and in such instalments as may be specified in the order:Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the Estate Officer.(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under Sub-section (1) or the damages or any installment thereof payable under Sub-section (2) within the time specified in the order relating thereto the Estate Officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrears of land revenue.”3. As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time-limit for taking steps under that Section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent’s objection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars remedy without touching the right. Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time, however, provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit for possession of any property arises and Section 28 has no application. It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitt him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statute permits such a course. Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time? Under Section 7 the Estate Officer may order any person who is arrears of rent payable in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before, however, the order is made, a notice must issue calling upon the defaulter to show cause why such order should not be made and, if he raised any objection, the Estate officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is ‘payable’. The word ‘payable’ is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. ‘Payable’ generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source of foundation of a right to claim a debt otherwise time-barred. Construing the expression “any money due” in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric Co. Ltd. that this meant moneys due and recoverable in a suit by the company, and observed:“It is a Section which creates a special procedure for obtaining payment of moneys: it is not a Section which purports to create a foundation upon which to base a claim for payment. It creates no new rights”.4. We are clear that the word “payable” in Section 7, in the context in which it occurs, means legally recoverable’. Admittedly a suit to recover the arrears instituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was, therefore irrecoverable.5.
### Response:
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would appear from the terms of the section, it provides aprocedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time-limit for taking steps under that Section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error inobjection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars remedy without touching the right. Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time, however, provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit forof any property arises and Section 28 has no application. It is notthat a creditor whose suit is barred by limitation, if he has any other legal remedy permitt him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statuteder Section 7 the Estate Officer may order any person who is arrears of rent payable in respect of anypremises to pay the same within such time and in such instalments as he may specify in the order. Before, however, the order is made, a notice must issue calling upon the defaulter to show cause why such order should not be made and, if he raised any objection, the Estate officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which isis somewhat indefinite in import and its meaning must be gathered from the context in which itly means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer inthe amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent themust be in accordance with law. Section 7 only provides a specialfor the realisation of rent in arrears and does not constitute aof foundation of a right to claim a debt otherwiseare clear that the wordin Section 7, in the context in which it occurs, means legallyAdmittedly a suit to recover theinstituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was, therefore
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Sone Valley Portland Cement Company Limited Vs. General, Mining Syndicate Private Limited | be impressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. The counsel has strongly urged that since it is not strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was introduced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section. We also find ourselves unable to accept this contention and to disregard the well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration parliamentary expositions as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incorporated Act ineffectual, or otiose or inept. (See Krikness v. John Hudson &Co.([19551 A.C. 696 (H.L.)). This view also receives support from the decision of this Court in Yogendra Nath Naskar v. C.I.T. Calcutta([1969] 1 S.C.C. 555. [1969] 3 S.C.R. 742.) where approving the authoritative pronouncement in Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403.) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous.It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease for the remainder of the term of the lease an d the respondent became entitled to retain possession of the leasehold property. The first contention of Mr. Patel is, therefore, repelled.8. Mr. Patel has next contended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases (Modification of Terms) Rules, 1956, which continued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61, 684.40 which was paid by him as an agent of the respondent. This contention has to be examined with reference to two periods viz. (i) from July 1, 1958 to August 7, 1959, and (ii) August 8, 1959 to March 31, 1961. It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty. payable to the State, , it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise. No question of reimbursement for this period can, therefore, arise.9. The position, however, with regard to the second period from August 8, 1959, to March 31, 1961, .is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act. Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 Act, according to counsel for the respondent, as the expression "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a sub-lease and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant. There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. v. Union of India (supra) and M/s Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee &Ors. ( supra) where it was unequivocally laid down that a statutory lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub-lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government. In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agreement of the parties hereto, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit L (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be countenanced. The second contention raised by Mr. Patel also, therefore, fails. | 0[ds]We also find ourselves unable to accept this contention and to disregard the well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration parliamentary expositions as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incorporated Act ineffectual, or otiose or inept. (See Krikness v. John Hudson &Co.([19551 A.C. 696 (H.L.)). This view also receives support from the decision of this Court in Yogendra Nath Naskar v. C.I.T. Calcutta([1969] 1 S.C.C. 555. [1969] 3 S.C.R. 742.) where approving the authoritative pronouncement in Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403.) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous.It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease for the remainder of the term of the lease an d the respondent became entitled to retain possession of the leasehold property. The first contention of Mr. Patel is, therefore,is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty. payable to the State, , it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise. No question of reimbursement for this period can, therefore,position, however, with regard to the second period from August 8, 1959, to March 31, 1961, .is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act. Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 Act, according to counsel for the respondent, as the expression "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a sub-lease and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant. There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. v. Union of India (supra) and M/s Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee &Ors. ( supra) where it was unequivocally laid down that a statutory lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub-lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government. In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agreement of the parties hereto, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit L (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be countenanced. The second contention raised by Mr. Patel also, therefore, fails. | 0 | 6,546 | 882 | ### 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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be impressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. The counsel has strongly urged that since it is not strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was introduced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section. We also find ourselves unable to accept this contention and to disregard the well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration parliamentary expositions as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incorporated Act ineffectual, or otiose or inept. (See Krikness v. John Hudson &Co.([19551 A.C. 696 (H.L.)). This view also receives support from the decision of this Court in Yogendra Nath Naskar v. C.I.T. Calcutta([1969] 1 S.C.C. 555. [1969] 3 S.C.R. 742.) where approving the authoritative pronouncement in Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403.) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous.It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease for the remainder of the term of the lease an d the respondent became entitled to retain possession of the leasehold property. The first contention of Mr. Patel is, therefore, repelled.8. Mr. Patel has next contended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases (Modification of Terms) Rules, 1956, which continued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61, 684.40 which was paid by him as an agent of the respondent. This contention has to be examined with reference to two periods viz. (i) from July 1, 1958 to August 7, 1959, and (ii) August 8, 1959 to March 31, 1961. It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty. payable to the State, , it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise. No question of reimbursement for this period can, therefore, arise.9. The position, however, with regard to the second period from August 8, 1959, to March 31, 1961, .is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act. Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 Act, according to counsel for the respondent, as the expression "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a sub-lease and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant. There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. v. Union of India (supra) and M/s Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee &Ors. ( supra) where it was unequivocally laid down that a statutory lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub-lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government. In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agreement of the parties hereto, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit L (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be countenanced. The second contention raised by Mr. Patel also, therefore, fails.
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We also find ourselves unable to accept this contention and to disregard the well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration parliamentary expositions as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incorporated Act ineffectual, or otiose or inept. (See Krikness v. John Hudson &Co.([19551 A.C. 696 (H.L.)). This view also receives support from the decision of this Court in Yogendra Nath Naskar v. C.I.T. Calcutta([1969] 1 S.C.C. 555. [1969] 3 S.C.R. 742.) where approving the authoritative pronouncement in Cape Brandy Syndicate v. I.R.C. ([1921] 2 K.B. 403.) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous.It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease for the remainder of the term of the lease an d the respondent became entitled to retain possession of the leasehold property. The first contention of Mr. Patel is, therefore,is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty. payable to the State, , it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise. No question of reimbursement for this period can, therefore,position, however, with regard to the second period from August 8, 1959, to March 31, 1961, .is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act. Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 Act, according to counsel for the respondent, as the expression "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a sub-lease and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant. There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. v. Union of India (supra) and M/s Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee &Ors. ( supra) where it was unequivocally laid down that a statutory lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub-lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government. In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agreement of the parties hereto, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit L (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be countenanced. The second contention raised by Mr. Patel also, therefore, fails.
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A.R. Krishnamurthy & Anr Vs. C.I.T. Madras | That since the cost of acquisition of the right granted under the lease cannot be determined, the computation provisions under the Act can not apply at all and as such section 45 of the Act is not attracted. Reliance for this contention is placed on the judgment of this court in CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294 . 7. As regards the first contention, section 2(14) of the Act defines "capital asset" as "property of any kind held by an assessee". What is parted with under the terms of the lease deed is the right to exploit the land by extracting clay, which right directly flows from the ownership of the land. The said right, evaluated in terms of money, forms part of the cost of acquiring the land. In Traders and Miners Ltd. v, CIT [1955] 27 ITR 341 , a Division Bench of the Patna High Court, interpreting the expression "transfer of a capital asset", held as under (at page 345)"We think that the expression transfer in the section includes not only a permanent transfer but also a temporary transfer of title to the property in question and lease of mines for any period would fall within the ambit of section 12B of the Act. It was also contended by Mr. Dutt that a transaction of lease did not tantamount to a transfer of title but that a mere contractual right was created. We do not think that this argument is correct. A lease of land is transfer of interest in the land and creates right in rem : and there is a transfer of title in favour of the lessee though the lessor has right of reversion after the period of the lease terminates." 8. This decision has been referred to with approval by this court in R. K. Palshikar (HUF) v. CIT [1988] 172 ITR 311 If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then, obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease. Undisputedly, the grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the rights granted under the lease. The amount of Rs. 27, 260 paid by the assessee was not only the cost of acquiring the land but also of acquiring a bundle of rights in the said land including the right to grant lease. There is thus no force in the contention of learned counsel that, conceptually, there is no "cost of acquisition" which is attributable to the right of limited enjoyment transferred by the grant of the lease. So far as the apportionment of the cost of acquisition is concerned, it is a question of fact to be determined by the Income-tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate clay in the land in terms of money may be difficult but is none the less of money value and the best valuation possible must be made. Viscount Simon, in Gold Coast Selection Trust Ltd. v. Humphrey [1949] 17 ITR (Supp) 19, 26, observed : "valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible." The Income-tax Officer in this case worked out the cost of the leasehold interest by adopting the 5/8ths ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him. In Traders and Miners Ltd. v. CIT [1955] 27 ITR 341 (Pat) the Income-tax Officer had also determined the cost of the leasehold rights on proportionate basis. Once the cost of the leasehold rights is determined, then, there is no difficulty in making apportionment. We, therefore, do not find any force in the first contention of Mr. Salve and reject the sameIn view of our finding on the first contention, the second contention does not survive. The value of leasehold rights in the cost of acquisition of land being determinable, the computation provisions under the Act are applicable and section 45 would be attracted. In B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC), the question was whether the transfer of the goodwill of a newly commenced business can give rise to a capital gain taxable under section 45 of the Act. This court answered the question in the negative. Referring to the charging section and the computation provisions under the Act, this court held that none of those provisions suggest the inclusion of an asset under the head "Capital gain", in the acquisition of which no cost at all can be conceived. Goodwill generated in an individuals business was held to be an asset in which no cost element can be identified or envisaged. It was also held that the date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains and in the case of self-generated goodwill, it is not possible to determine the same. The third reason for holding that the goodwill generated in a newly commenced business cannot be described as an " asset" within the terms of section 45 of the Act was that it is impossible to determine its cost of acquisition. None of the three reasons given by this court in B. C. Srinivasa Settys case [1981] 128 ITR 294 are applicable in the present case. We have held that the cost of acquisition of leasehold rights can be determined. The date of acquisition of the right to grant lease has to be the same as the date of acquiring the freehold rights. The ratio of B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC) is thus not attracted to the question involved in the present case. | 0[ds]As regards the first contention, section 2(14) of the Act defines "capital asset" as "property of any kind held by an assessee". What is parted with under the terms of the lease deed is the right to exploit the land by extracting clay, which right directly flows from the ownership of the land. The said right, evaluated in terms of money, forms part of the cost of acquiring the land. In Traders and Miners Ltd. v, CIT [1955] 27 ITR 341 , a Division Bench of the Patna High Court, interpreting the expression "transfer of a capital asset", held as under (at page 345)"We think that the expression transfer in the section includes not only a permanent transfer but also a temporary transfer of title to the property in question and lease of mines for any period would fall within the ambit of section 12B of the Act. It was also contended by Mr. Dutt that a transaction of lease did not tantamount to a transfer of title but that a mere contractual right was created. We do not think that this argument is correct. A lease of land is transfer of interest in the land and creates right in rem : and there is a transfer of title in favour of the lessee though the lessor has right of reversion after the period of the leasedecision has been referred to with approval by this court in R. K. Palshikar (HUF) v. CIT [1988] 172 ITR 311 If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then, obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease. Undisputedly, the grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the rights granted under the lease. The amount of Rs. 27, 260 paid by the assessee was not only the cost of acquiring the land but also of acquiring a bundle of rights in the said land including the right to grant lease. There is thus no force in the contention of learned counsel that, conceptually, there is no "cost of acquisition" which is attributable to the right of limited enjoyment transferred by the grant of the lease. So far as the apportionment of the cost of acquisition is concerned, it is a question of fact to be determined by the Income-tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate clay in the land in terms of money may be difficult but is none the less of money value and the best valuation possible must be made. Viscount Simon, in Gold Coast Selection Trust Ltd. v. Humphrey [1949] 17 ITR (Supp) 19, 26, observed : "valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible." The Income-tax Officer in this case worked out the cost of the leasehold interest by adopting the 5/8ths ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him. In Traders and Miners Ltd. v. CIT [1955] 27 ITR 341 (Pat) the Income-tax Officer had also determined the cost of the leasehold rights on proportionate basis. Once the cost of the leasehold rights is determined, then, there is no difficulty in making apportionment. We, therefore, do not find any force in the first contention of Mr. Salve and reject the sameIn view of our finding on the first contention, the second contention does not survive. The value of leasehold rights in the cost of acquisition of land being determinable, the computation provisions under the Act are applicable and section 45 would be attracted. In B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC), the question was whether the transfer of the goodwill of a newly commenced business can give rise to a capital gain taxable under section 45 of the Act. This court answered the question in the negative. Referring to the charging section and the computation provisions under the Act, this court held that none of those provisions suggest the inclusion of an asset under the head "Capital gain", in the acquisition of which no cost at all can be conceived. Goodwill generated in an individuals business was held to be an asset in which no cost element can be identified or envisaged. It was also held that the date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains and in the case of self-generated goodwill, it is not possible to determine the same. The third reason for holding that the goodwill generated in a newly commenced business cannot be described as an " asset" within the terms of section 45 of the Act was that it is impossible to determine its cost of acquisition. None of the three reasons given by this court in B. C. Srinivasa Settys case [1981] 128 ITR 294 are applicable in the present case. We have held that the cost of acquisition of leasehold rights can be determined. The date of acquisition of the right to grant lease has to be the same as the date of acquiring the freehold rights. The ratio of B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC) is thus not attracted to the question involved in the present case. | 0 | 2,209 | 1,050 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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That since the cost of acquisition of the right granted under the lease cannot be determined, the computation provisions under the Act can not apply at all and as such section 45 of the Act is not attracted. Reliance for this contention is placed on the judgment of this court in CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294 . 7. As regards the first contention, section 2(14) of the Act defines "capital asset" as "property of any kind held by an assessee". What is parted with under the terms of the lease deed is the right to exploit the land by extracting clay, which right directly flows from the ownership of the land. The said right, evaluated in terms of money, forms part of the cost of acquiring the land. In Traders and Miners Ltd. v, CIT [1955] 27 ITR 341 , a Division Bench of the Patna High Court, interpreting the expression "transfer of a capital asset", held as under (at page 345)"We think that the expression transfer in the section includes not only a permanent transfer but also a temporary transfer of title to the property in question and lease of mines for any period would fall within the ambit of section 12B of the Act. It was also contended by Mr. Dutt that a transaction of lease did not tantamount to a transfer of title but that a mere contractual right was created. We do not think that this argument is correct. A lease of land is transfer of interest in the land and creates right in rem : and there is a transfer of title in favour of the lessee though the lessor has right of reversion after the period of the lease terminates." 8. This decision has been referred to with approval by this court in R. K. Palshikar (HUF) v. CIT [1988] 172 ITR 311 If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then, obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease. Undisputedly, the grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the rights granted under the lease. The amount of Rs. 27, 260 paid by the assessee was not only the cost of acquiring the land but also of acquiring a bundle of rights in the said land including the right to grant lease. There is thus no force in the contention of learned counsel that, conceptually, there is no "cost of acquisition" which is attributable to the right of limited enjoyment transferred by the grant of the lease. So far as the apportionment of the cost of acquisition is concerned, it is a question of fact to be determined by the Income-tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate clay in the land in terms of money may be difficult but is none the less of money value and the best valuation possible must be made. Viscount Simon, in Gold Coast Selection Trust Ltd. v. Humphrey [1949] 17 ITR (Supp) 19, 26, observed : "valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible." The Income-tax Officer in this case worked out the cost of the leasehold interest by adopting the 5/8ths ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him. In Traders and Miners Ltd. v. CIT [1955] 27 ITR 341 (Pat) the Income-tax Officer had also determined the cost of the leasehold rights on proportionate basis. Once the cost of the leasehold rights is determined, then, there is no difficulty in making apportionment. We, therefore, do not find any force in the first contention of Mr. Salve and reject the sameIn view of our finding on the first contention, the second contention does not survive. The value of leasehold rights in the cost of acquisition of land being determinable, the computation provisions under the Act are applicable and section 45 would be attracted. In B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC), the question was whether the transfer of the goodwill of a newly commenced business can give rise to a capital gain taxable under section 45 of the Act. This court answered the question in the negative. Referring to the charging section and the computation provisions under the Act, this court held that none of those provisions suggest the inclusion of an asset under the head "Capital gain", in the acquisition of which no cost at all can be conceived. Goodwill generated in an individuals business was held to be an asset in which no cost element can be identified or envisaged. It was also held that the date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains and in the case of self-generated goodwill, it is not possible to determine the same. The third reason for holding that the goodwill generated in a newly commenced business cannot be described as an " asset" within the terms of section 45 of the Act was that it is impossible to determine its cost of acquisition. None of the three reasons given by this court in B. C. Srinivasa Settys case [1981] 128 ITR 294 are applicable in the present case. We have held that the cost of acquisition of leasehold rights can be determined. The date of acquisition of the right to grant lease has to be the same as the date of acquiring the freehold rights. The ratio of B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC) is thus not attracted to the question involved in the present case.
### Response:
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### Explanation:
As regards the first contention, section 2(14) of the Act defines "capital asset" as "property of any kind held by an assessee". What is parted with under the terms of the lease deed is the right to exploit the land by extracting clay, which right directly flows from the ownership of the land. The said right, evaluated in terms of money, forms part of the cost of acquiring the land. In Traders and Miners Ltd. v, CIT [1955] 27 ITR 341 , a Division Bench of the Patna High Court, interpreting the expression "transfer of a capital asset", held as under (at page 345)"We think that the expression transfer in the section includes not only a permanent transfer but also a temporary transfer of title to the property in question and lease of mines for any period would fall within the ambit of section 12B of the Act. It was also contended by Mr. Dutt that a transaction of lease did not tantamount to a transfer of title but that a mere contractual right was created. We do not think that this argument is correct. A lease of land is transfer of interest in the land and creates right in rem : and there is a transfer of title in favour of the lessee though the lessor has right of reversion after the period of the leasedecision has been referred to with approval by this court in R. K. Palshikar (HUF) v. CIT [1988] 172 ITR 311 If a transfer of a capital asset in section 45 of the Act includes grant of a mining lease for any period, then, obviously, the "cost of acquisition" of the land would include the "cost of acquisition" of the mining right under the lease. Undisputedly, the grant of a lease being a transfer of an asset, there is no escape from the conclusion that there is a live nexus between the "cost of acquisition" of the land and the rights granted under the lease. The amount of Rs. 27, 260 paid by the assessee was not only the cost of acquiring the land but also of acquiring a bundle of rights in the said land including the right to grant lease. There is thus no force in the contention of learned counsel that, conceptually, there is no "cost of acquisition" which is attributable to the right of limited enjoyment transferred by the grant of the lease. So far as the apportionment of the cost of acquisition is concerned, it is a question of fact to be determined by the Income-tax Officer in each case on the basis of evidence. The determination of the cost of the right to excavate clay in the land in terms of money may be difficult but is none the less of money value and the best valuation possible must be made. Viscount Simon, in Gold Coast Selection Trust Ltd. v. Humphrey [1949] 17 ITR (Supp) 19, 26, observed : "valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible." The Income-tax Officer in this case worked out the cost of the leasehold interest by adopting the 5/8ths ratio, though the Appellate Assistant Commissioner gave the benefit to the assessee of the full price of the land paid by him. In Traders and Miners Ltd. v. CIT [1955] 27 ITR 341 (Pat) the Income-tax Officer had also determined the cost of the leasehold rights on proportionate basis. Once the cost of the leasehold rights is determined, then, there is no difficulty in making apportionment. We, therefore, do not find any force in the first contention of Mr. Salve and reject the sameIn view of our finding on the first contention, the second contention does not survive. The value of leasehold rights in the cost of acquisition of land being determinable, the computation provisions under the Act are applicable and section 45 would be attracted. In B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC), the question was whether the transfer of the goodwill of a newly commenced business can give rise to a capital gain taxable under section 45 of the Act. This court answered the question in the negative. Referring to the charging section and the computation provisions under the Act, this court held that none of those provisions suggest the inclusion of an asset under the head "Capital gain", in the acquisition of which no cost at all can be conceived. Goodwill generated in an individuals business was held to be an asset in which no cost element can be identified or envisaged. It was also held that the date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains and in the case of self-generated goodwill, it is not possible to determine the same. The third reason for holding that the goodwill generated in a newly commenced business cannot be described as an " asset" within the terms of section 45 of the Act was that it is impossible to determine its cost of acquisition. None of the three reasons given by this court in B. C. Srinivasa Settys case [1981] 128 ITR 294 are applicable in the present case. We have held that the cost of acquisition of leasehold rights can be determined. The date of acquisition of the right to grant lease has to be the same as the date of acquiring the freehold rights. The ratio of B. C. Srinivasa Settys case [1981] 128 ITR 294 (SC) is thus not attracted to the question involved in the present case.
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Commissioner of Income Tax Vs. Kamala Town Trust | of the fund should not be in a position to make a grant to such a person to make up his loss. It might be a most desirable thing to do and the administrators might justly think that they had used some of the funds to the best advantage. But such use cannot be said to be for the relief of poverty. Even if (as had been argued) the administrators are bound to use this fund solely "to relieve persons suffering from indigence, ill-health or other Necessitous circumstances, " it was impossible to say that the fund is - to use the words of the section - "property held in trust wholly for charitable purposes." A Division Bench of the Allahabad High Court in the case of J.K. Hosiery Factory (supra) had an occasion to consider the very same clause of the rectified deed of 1945.It is of course true that the said decision was rendered in assessment proceedings of the firm wherein respondent- assessee was a partner and not in the assessment proceedings of the respondent firm itself. Still the interpretation placed on the very same Trust Deed as rectified in 1945 in proceedings to which respondent-assessee was a party in another capacity cannot be said to be totally irrelevant. H.N. Seth, J., speaking for the Division Bench made the following observations in this connection: "We are doubtful whether the construction of residential colony for workmen in general can be regarded as an object of public charity. While enabling the trustees to construct residential quarters, etc ., for the benefit of the workmen in general, the settlor made it clear that such buildings were not to be constructed for the benefit of the public in general. The expression "workmen in general" does not fix a definite class of public which is in tended to be benefited under the deed. What types of employees or workers can be said to be covered by this expression is not at all clear." 27. Moreover, the precise language used by the settlor is "to erect ... residential quarters, etc., for the w orkmen in general and in particular for the workmen, staff and other employees of the company or other allied concerns under the management of ..." *. This shows that the expression "workmen in general" was not intended to mean merely poor labourers. The expression was intended to cover even such classes of persons who might be employed in any concern in any capacity whatsoever and who may be drawing high salaries. Making a provision for constructing residential quarters, etc., for the benefit of the employees irrespective of whether they are poor or not, can hardly be said to be a charitable object or a work of general public utility." * 28. As we have discussed earlier the term workmen in general when read in the context socio-economic situation prevailing in 1945 in this country and when also considered in the context of construction of residential quarters, chawls or buildings in Kanpur may partake the character of a well defined class of workmen in Kanpur city who ma y be poor and needy, still as the trustees are enjoined to construct residential quarters, Chawls or buildings in particular for the workmen, staff and other employees of the company it follows that other employees of the company who are the beneficiaries may not necessarily be poor or needy or affluent. We, therefore, concur with the second part of the reasoning of Allahabad High Court in the aforesaid judgment though we are not in a position to subscribe to the general proposition that construction of residential colonies for workmen in general cannot by itself be regarded as an object of public charity. As a result of the aforesaid discussion, therefore, it must be held that rectified clause 2(b)(i) of 1945 deed fell short of projecting an object of a public charitable nature and it could not be said that under the rectified deed of 1945 the trust properties were held by respondent-trust wholly for religious or charitable purposes. It is of course true that rest of the sub-clauses of clause 2(b) did refer to charitable objects but as one of the objects was not of a public charitable nature it could not be held that the entire trust was wholly for religious or charitable purposes. 29. Now is left the consideration of one submission of Shri Verma, learned senior counsel for the Respondent who relied upon Explanation to sub-section (3) of Section 4 of 1922 Act which read as under: "In this sub-section charitable purpose includes relief of the poor, education, medical relief and advancement of any other object of general public utility, but nothing contained in clause (i) or clause (ii) shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not ensure for the benefit of the public." * 30. In our view the said Explanation cannot be of any avil to the respondent-assessee so far as the rectified deed of 1945 is concerned. The emphasis in the Explanation is on charitable objects of general public utility like relief of poor, education, medical relief and advancement of any other object of general public utility. Once it is held that clause 2(b)(i) of 1945 rectification deed imposed an obligation on the trustees to utilise the trust property for the benefit of the settlor companys own workmen and employees, it would cease to be projecting an object of providing relief to poor workmen only. Nor would it advance any other object of general public utility but would be confined to the utility of a well defined class of employees and workmen of the settlor company and its allied concerns only. For all these reasons, therefore, it is not possible to accept the submission of Shri Verma, learned senior counsel for respondent-assessee based on this Explanation. This contention, therefore, stands rejected. Conclusions 31. ----------- | 1[ds]Contention No.1---------------- So far as jurisdiction of the Civil Court to grant rectification of the Trust Deed is concerned the relevant provision is found in Section 26 ofthe Specific Relief Act, 1963 which had succeeded the prior Specific Relief Act of 1877. Under the earlier Act an analogous provision was found in Section 31 of the Act. As per these provisions a suit could be filed before competent Civil Court for rectification of an instrument when through fraud or a mutual mistake of the parties a contract or other instrument in writing does not express their real intention. It is obvious that a Trust Deed is not a contract in the strict sense of the term but it would certainly be covered by the expression other instrument in writing. It could, therefore, not be urged with any emphasis that competent Civil Court which was approached by the Settlor Company for rectification of the instrument of trust, was not having requisite jurisdiction to entertain suchfail to appreciate how the aforesaid decision can be of any assistance to the learned senior counsel for the Revenue in the present case. On the facts of the case before Andhra Pradesh High Court the City Civil Court, Hyderabad, had no jurisdiction under Section 34 of the Trust Act to bring about any changes in the objects of trust which had become a public trust. On the facts of the present case Section 31 of 1877 Act (Specific Relief Act) or the corresponding provisions of Section 26 of 1963 Act could be effectively invoked for rectification of the instrument of trust. Such a court does not suffer from any inherent lack of jurisdiction, like the City Civil Court in the Andhra Pradesh case which had no such jurisdiction under Section 34 of the Indian Trusts Act. The first contention must, therefore, beor is one party to the trust who settles his property in trust for the benefit of others who become beneficiaries and the legal ownership of the property is transferred to the trustees. Thus not only there are more than one party to the instrument of trust but in fact there would at least be two main parties, namely, the settlor on the one hand and the trustees on the other and also there will be the beneficiaries who would be indirectly third parties to the instrument though not being direct parties thereto. Thus it would be almost a tripartiteSettlor Company had clearly indicated in the rectification proceedings that the real intention of the settlor to create a public charitable trust was not clearly brought out on the wordings of the original Trust Deed and, therefore, the need to rectify the instrument, as neither the Settlor Company nor the trustees who assumed the legal ownership of the property settled in trust would have agreed to the transaction in question if it had purported not to create a public charitable trust. It was this mutual mistake on the part of both the parties that required rectification of the instrument to make, what was latent intention a patent one. Even that apart it is strictly not open to the Revenue which is not a party to the instrument to take up such a contention about non-fulfilment of condition precedent as it would be a fact in issue before the competent court which was called upon to rectify the instrument by either of the parties to the instrument. Absence of such a condition would at the most make the order erroneous and which can be challenged by either of the parties to the proceedings but it will have no impact on the jurisdiction of the Civil Court to pass such an order however erroneous it may appear to be to the Revenue. At the highest such an error would remain in the realm of error in the exercise of jurisdiction and not an error depriving jurisdiction to the competent court to entertain such rectification proceedings. In this connection it is profitable to have a look at the decision of Delhi High Court in the case of Jagdamba Charity Trust v. Commissioner of Income-Tax, Delhi (Central) 1981 (128) ITR 377. In that case Deed of Trust was got rectified by the parties from the Civil Court. These proceedings had to be initiated in the light of judgment of the High Court which had held that due to provisions in certain clauses of the Trust Deed the trust was non-charitable and the trust was not entitled to exemption under Income-tax Act and that since the decision had created some doubts regarding the validity of some clauses of the deed it was necessary that the deed should be rectified. The Civil Court granted a decree and directed that the Trust Deed be rectified. The question was whether such rectification order of the Civil Court was binding on the Income Tax Department when the assessee-trust armed with such rectification order claimed exemption from income tax under Section 11 of the 1961 Act.S. R anganathan, J., as he then was, speaking for the Delhi High Court took the view that the word instrument used in Section 26 of the Specific Relief Act has a very wide meaning and includes every document by which any right or liability is, o r is purported to be created, transferred, limited, extended, extinguished or recorded. There is no reason to exclude a Trust Deed from its purview. A Trust Deed is a document which sets out the terms of an understanding between the author of the trust and the trustees. Though in form, the trustees are not signatories to the instrument as drawn up, they are parties to the instrument in a real sense for it is on the terms of the instrument that they accept office and proceed to administer the trust. The law obliges them to act upon the terms of the Trust Deed and they cannot commit a breach thereof. If a gift deed, sale deed or promissory note could be within the terms of the section, there is no reason why a Trust Deed cannot be rectified under Section 26. It was further held that since there was an order of Civil Court binding on the author and the trustees, they could administer the trust only in terms of the amendment directed by the Court. The trustees were and must be deemed, from the beginning, to have been under a legal obligation to hold the properties only for the object and with the powers set out in the Trust Deed as amended. Therefore, whatever might be the correctness or otherwise of the order passed by the Civil Court under Section 26 ofthe Specific Relief Act, 1963, it was not open to the Income-tax Officer to say that the trustees could administer the trust in accordance with the original deed and that the claim for exemption had to be dealt with on the basis of the original deed. Nor was it open to the Income-tax Officer to say that in the relevant accounting year, the trustees held the property subject to the terms of the original and not the amended deed. In our view the aforesaid decision of the Delhi High Court lays down the correct legal position in connection with proceedings for rectification of instruments like trust deeds, initiated before competent civil courts under the relevant provisions of the Specific Relief Act.In the case of Laxminarain Lath Trust v. Commissioner of Income-tax 1988 (170) ITR 375 a Division Bench of Rajasthan High Court speaking through S.C. Agrawal, J., as he then was, h ad to consider the question whether any rectification of the Trust Deed which changed character of the private trust into public charitable trust could be relied upon before the Income Tax authorities for claiming exemption under Section 11 ofthe Income-tax Act, 1961 by the assessee-trust. In that case the original Trust Deed executed in August 1948 did not bring out the real intention of the settlor to create a public charitable trust on account of certain sub-clauses of Object Clause No. 2. It was, therefore, felt necessary to rectify the mistake in the original settlement deed so as to put on record the true intention of the settlor and of the trust created by him. It was held by the Rajasthan High Court that it was pe rmissible for the settlor to clarify his intention increating the trust under the original settlement deed by executing the supplementary deed. Even in the original deed, a discretion had been conferred on the trustees to apply the income of the trust in rendering aid to persons belonging to the L family and it was permissible for the trustees not to apply the income of the trust for the said object and in fact the income of the trust had never been applied for thatcould not be said that the beneficiaries under clause 2(vi), namely, persons belonging to the family of L, had an enforceable right to the application of the income of the assessee for the object mentioned in clause 2(vi), and in these circumstances their consent was not necessary before altering the terms of the Trust Deed. In any case although the supplementary deed was executed in May 1958, none of the persons belonging to the family of L had challenged the validity of the same in a court of la w. After the execution of the supplementary deed, it was not open to the trustees to apply the funds of the assessee for non-charitable purposes. The assessee-trust had acquired the status of a trust wholly for charitable and religious purposes after the amendment of the Trust Deed in May 1958. It was entitled to exemption under Section 11 ofthe Income-tax Act, 1961. The doctrine of cy pres was also invoked in the said case by observing that in respect of christie the courts apply the doctrine of cy pres which envisaes that if a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed and the law will substitute another mode cy pres, i.e., as nearly as po ssible to the mode specified by the donor. The said doctrine is applied on the principle that the court would lean in favour of charity and where a general charitable goal is projected and particular objects and modes are indicated, the court, acting to fulfil the broader benevolence of the donor and to avert the frustration of the good to the community, reconstructs, as nearly as may be, the charitable intent and makes viable what otherwise may die. The aforesaid decision of the Rajasthan High Court also takes a view which is almost parallel to the view taken by the Delhi High Court though the binding nature of the rectification order of the civil court on the Income Tax Officer is not highlighted as no such occasion arose for Rajasthan High Court to pronounce on the same on the facts of that case. However, the fact remains that after due rectification of the original Trust Deed either by the settlor himself by executing a supplementary deed or by getting it rectified through competent civil court under the relevant provisions of the Specific Relief Act, the trustees would be bound to carry out the amended and rectified objects of the trust and if they fail to do so they would be guilty of b reach of trust for which even proper proceedings can be initiated against them under Section 92 of theCode of Civil Procedure. For all these reasons, therefore, it must be held that when such rectified Trust Deed is pressed in service before the Income-tax authorities in assessment proceedings concerning the relevant assessment years the Income-tax Officer will have to interpret such rectified instrument for finding out its correct legal effect. But it will not be open to the Income-tax Officer to refuse to look at such rectified instrument of trust and to insist that the trustees of the trust should ignore the said rectified objects and should stick to the instrument as it existed prior to its rectification. The Income-tax officer will have to take the instrument as it exists in its actual amended form when it is pressed in service for framing the assessment concerning the relevant assessment year in which such rectified instrument holds the field. The second contention, therefore, fails and isNo. 3---------------- So far as this contention is concerned Dr. Gauri Shankar, learned senior counsel for the Revenue was right when he contended that order of rectification by a civil court is not a judgment in rem. It would be a judgment in personam binding on the parties to the rectified instrument, namely, the settlor on the one hand and the trustees on the other as well as on the ultimate beneficiaries. It is also true that Section 41 of the Indian Evidence Act cannot apply to such rectification order as under the said provision only judgments and orders passed in exercise of probate, matrimonial admirality or insolvency jurisdiction would have the character o f judgments in rem. Similarly Section 42 of the Indian Evidence Act also could not make them relevant in any enquiry or proceedings unless they relate to matters of a public nature relevant to the enquiry. However it is Section 43 of the Evidence Act which would squarely get attracted in such cases. Said section lays down that judgments, orders or decrees other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act. Section 40 deals with previous judgments relevant to bar a second suit or trial. That obviously cannot have any application. But a rectified Trust Deed pursuant to the order of the court would certainly make the rectification order relevant under the provisions of Section 11 of the Indian Evidence Act, as the fact in issue in an enquiry before the Income-tax Officer would be whether on the basis of the rectified trust instrument the assessee-trust is entitled to get its income exempted from tax under the relevant provisions of the Income-tax Act. In such proceedings, therefore, the order granting rectification of such instrument of trust would certainly remain relevant. Consequently it cannot be said that such rectification orders passed by civil courts permitting rectifications of trust deeds under the relevant provisions of the Specific Relief Act could not be relied upon by the assessee-trust in assessment proceedings before the Income-tax Officer was not a party to such rectification proceedings. It will be for the Income-tax Officer to consider the real scope and ambit of the Trust Deed as presented to him in rectified form with a view to finding out whether on the basis of such a rectified instrument the assessee trust had earned exemption from payment of income tax under the relevant provisions holding the field in the concerned assessment years. The third contention is, therefore, decided by answering that though the rectification orders of the civil court are not judgments in rem they are relevant in assessment proceedings before the Income-tax Officer and will have to be given effect to for whatever they areNo. 4---------------- So far as this contention is concerned learned senior counsel for the Revenue is spared his pains as learned senior counsel for respondent-assessee fairly stated in the light of the debate that took place in the Court that he was not supporting the answer given by the High Court in favour of assessee on Question No. 2 referred for the opinion of the High Court at the instance of the assessee-trust. In short he submitted that he would treat 1955 rectification of the instrument of trust as creating almost a new trust or substituting the new for the old and, therefore, he would not press that such rectification of 1955 would have any retrospective effect. In view of the fair stand taken by the learned senior counsel for the respondent-assessee, this contention will have to be decided in favour of the Revenue and against the assessee by holding that rectification brought about by the order of the civil court in 1955, namely, the second rectification had no retrospective effect and would operate prospectively from the date on which such rectification saw the light of the day and would cover assessment years 1956-57 onwards upto assessment years 1965-66 and would not look back on the previous assessment years from 1949-50 to 1955-56. In other words the decision of the Tribunal on referred Question No. 2 will remain operative and that contrary answer of the High Court on this question would stand rejected.Contention No.mere lo ok at the aforesaid objects of the trust which remained operative and kicking after the second rectification of 1955 shows that each of the objects mentioned in clauses (b), (c), (d) and (e) of Object Clause 2 clearly partakes the character of a charitable disposition meant for the benefit of a well demarcated mass of humanity. There is not much dispute on this aspect, so far as paras 2(a) and (b)(ii) to (iv), (c), (d) and (e) arecannot be said that the indicated beneficiaries, namely, the workmen in the town of Kanpur and surrounding areas and extensions are so vague as to make the object of the trus t inoperative or options. Workmen in town of Kanpur and the surrounding areas and extensions formed a clearly earmarked class or category of members of general public and they were certainly a part and parcel of the general public.It is also not pos sible to countenance the submission that the words surrounding areas and extensions of Kanpur town introduced vagueness, in the identification of beneficiaries. Surrounding areas and extensions would naturally include those areas which are on the periphery of Kanpur town, and which are adjacent to Kanpur town. They would not obviously include any areas which are geographically far removed from and situated at long distance from Kanpur town and which could not be said to be in the vicinity of the Kanpur town. The words surrounding areas and extensions of Kanpur town indicate proximity of such areas with the Kanpur town and have a clear nexus with the geographical boundary of Kanpur town. It is also easy to visualise that the trustees will have to make available the benefit of the clause only to those workmen in the town of Kanpur and surrounding areas and extensions and to their respective families and dependents who on account of poverty are in need of help and really deserve help. Any provision made for a poor class of public well earmarked as recipient of such benefits would certainly make the object of such bounty a charitableorder to find out whether the relevant clauses of a trust deed create a public charitable trust or not we have to go by the express words employed by the Trust Deed. In our view for finding out the real intention of the settlor, the words used in the Deed would be the real vehicle of thought of the settlor expressing his intention in cold print. This would be much more so when such recitals in the Trust Deed are not challenged on the ground that they are a camouflage or a result of a colourable device. As we have noted earlier, contention regarding colourable device was not pressed by Dr. Gauri Shankar for the Revenue and rightly so as it did not arise out of the judgment under appeal. On the other hand, on the express language of clause 2(b)(i) of the 1955 rectified deed, it cannot be said that it does not create a public charitable trust. On the contrary it becomes clear on a close reading of relevant provisions of this clause that the objects are specific and charitable in nature. The beneficiaries are also clearly indicated. There is also no ambiguity about the trustees or the trust properties. Thus all the basic requirements for creation of a public charitable trust do exist on the express language of the relevant sub-clauses of clause (2) of 1955 rectifiedsay the least it is merely a discretion left to the trustees and not an obligation of the trustees that they must necessarily spend the income of the trust for the workmen of the settlor company itself and not for the benefit of any other outside worker. We shall deal with this aspect in greater details when we will refer to Contention No. 6 canvassed by learned senior counsel for the assessee trust that even apart from the rectification of 1955 the earlier rectification of 1945 did create a public charitable trust. However so far as the second rectification of 1955 is concerned it has clearly indicated that only a discretion is vested in the trustees to utilise the trust income for benefit of poor workmen in the town of Kanpur and in the surrounding areas and extensions and that may include even poor and needy workmen of the settlor company itself. In this connection Shri Verma also rightly invited our attention to Section 92 of theCode of Civil Procedure and clause (i), sub-clause (b)(iv) whereby trustees in their discretion could provide for advancement of other similar objects of general publicis no doubt true that the trustees are enjoined to utilise the trust properties subject to the terms and provisions of the indentures dated 19th October 1936 and 2nd February 1938 which require the trustees to utilise the trust property for the benefit of settlor companys ownn our view these contentions on behalf of the assessee are well supported on the evidence on record. It cannot, therefore, be urged that the trustees had indulged in any profit making while employing the income of the trust on the beneficial objects of the Trust Deed and in discharging the obligations with which they were charged under the said Trust Deed. In fact in fairness it must be stated that Dr Gauri Shankar did not also pursue this aspect any further. Before parting with the discussion on this aspect we may also mention that at page 410 of the Paper Book Vol. II a list of tenants not working in J.K. Group of Mills but who are living inKamla Town Trustquarters, was furnished by the respondent-assessee before the Income Tax Tribunal along with the affidavit of one Shri R.B. Somnath, Engineer of the respondent-trust. This also showed that the beneficiaries of the trust income and properties are not only the workmen of the settlor company but also outside workmen who are residing in Kanpur town being a part and parcel of the general public. It must, therefore, be held that the rectified Trust Deed of 1955 did create a public charitable trust as rightly held by the High Court. Contention No. 5, therefore, standsinterpreting the word workmen in general as employed in 1945 rectified Trust Deed, we have to sit in settlors arm chair with a view to visualizing what was meant by the Settlor Company when it used these terms in 1945, keeping in view the then prevalent socio-economic conditions in this country. It is easy to visualise that workmen who were to toil for their existence would necessarily represent a class of needy persons requiring a shelter over their he ad, when the settlor company in 1945 contemplated to construct residential quarters, chawls or buildings for workmen it necessarily meant to provide these facilities for a needy class of persons who could legitimately be presumed to be a class of down-trodden persons suffering from penury and want. The socio-economic situation prevailing in England treating workmen as not necessarily poor, cannot almost automatically be imported and applied for judging the economic status of working class in India especially in 1945 when even the definition of workmen underthe Industrial Disputes Act, 1947 had also still to see the light of the day. We, therefore, cannot agree with the general proposition canvassed by Dr. Gauri Shankar for the Revenue that any provision made for the benefit of workmen in general would not necessarily be a provision for needy or poor class of citizens who may be forming part of the general public.Shri Verma, learned senior counsel for respondent- assessee was also right when he submitted, relying upon decision of this Court in Trustees of the Charity Fund (supra) and other decisions of the High Courts to which we have made a reference earlier, that when an y property is settled for charitable purposes for catering to the needs of a class of public which is poor and needy, any preference given to poor and needy workmen of the settlor company would not necessarily detract from the charitable object underlying such bequest or settlement. It is trite to observe that if settlors poor relatives can legitimately be the recipients of charitable benefits under a public charitable trust, then if such preference is given to poor workmen of the settlor company who are not even related to the settlor, they would stand at least on an equal if not a better footing and in no eventuality on a worse footing, in judging the public charitable nature of the settlement in their favour. However, the basic fact must remain that the settlement is made in favour of a well earmarked class of needy and poor persons who may form a part of the general public and for whom such charitable bequest or endowment is made, and the preferred class of beneficiaries must form a part and parcel of that very general earmarked class. It must, therefore, be held that the provision for construction of houses for workmen in general as found in clause 2(b)(i) of 1945 rectified Deed, so far as it went, did constitute a charitablethis conclusion of ours does not end the controversy centering round the aforesaid clause. There are two clear hurdles in the way of Shri Verma for the respondent which militat e against his submission that the said clause when read as a whole does create a public charitable trust in favour of workmen in general. The first hurdle is that the term workmen in general as employed in the clause is too general and vague but even assuming that in the context of the residential quarters, chawls or buildings to be constructed for them on the lands situated at Kanpur which are settled in trust by the Settlor Company, it would refer to workmen in Kanpur town, even then the more substantial hurdle in the way of the respondent is projected by the fact that there is an obligation cast on the trustees to construct these residential quarters, chawls or buildings in particular for the workmen, staff and other employees of the company or other allied concerns under the management of and in which the directors of the company may for the time being be interested and for their respective families and dependents. In the light of the words in particular as found in this clause, Dr. Gauri Shankar, learned senior counsel for Revenue rightly submitted, that they represent a scheme of priority for workmen of the Settlor Company and not a scheme of preference. In other words the trustees are bound under an obligation to construct residential quarters etc. first for the workmen or employees of the Settlor Company or its allied concerns. They have no choice in the matter. They cannot in their discretion select an outside workman as recipient of the benefit under the scheme of the Trust Deed. In effect the general class of beneficiaries constituted by the words workmen in general gets whittled down and circumscribed by the words in particular for workmen of the company etc.. Thus in substance it becomes a trust for the benefit of a well defined smaller class of beneficiaries, namely, employees or workmen of the company and its allied concerns and it fails to meet the requirement of a genuine or public or charitable trust. We are in agreement with this submission of Dr. Gauri Shankar. Once such an obligation is cast on the trustees the public character of the endowment gets whittled down and in substance becomes the settlement for an identified group of persons. In this connection we may profitably refer to a Division Bench judgment of the Bombay High Court in the case of Commissioner of Income-Tax, Bombay City II v. Walchand Diamond Jubilee Trust 1958 (34) ITR 228 wherein Chagla, C.J., spoke for the Bench. In that case the question was whether the provision made in Trust Deed to utilise the accumulated income of the property of the trust on charitable objects like giving scholarships to deserving students or giving medical relief s of the nature and kind such as starting maternity homes etc., or giving monetary help to the poor and needy persons and for providing relief to the poor and distressed in time of famine would get adversely affected and would cease to be a charitable object if preference was to be given to such persons as are eligible under the aforesaid provisions who are at the time or have in the past been employees of Premier Construction Co. Ltd. and of the associated companies and their relative s and dependents as the trustees may in their discretion think expedient andour view aforesaid is the correct test evolved by the High Court. Applying the said test to the clause in question we find that though residential quarters, chawls or buildings are to be constructed for the workmen in general and who, as we have already shown earlier, may be a well defined class of workmen residing in Kanpur and who may be poor and needy in the light of their socio-economic conditions as prevailed in 1945 when the clause was drafted, once we turn to the second part of this clause which lays down in clearest terms that in particular the quarters are to be constructed for the workmen staff and other employees of the company and of its allied concerns, it becomes clear that no discretion is left with the trustees and on the contrary they are enjoined, called upon and under an obligation to construct these quarters, chawls and buildings necessrily for the workmen, staff and other employees of the company and its allies. It is also easy to visualise that other employees of the company may include even affluent employees who may not necessarily constitute an object of charity . Once this conclusion flows from the wording of the clause, it becomes clear that reference to workmen in general becomes illusory and the settlement can be said to be in substance meant only for catering to the needs of a well defined group of persons, namely, workmen, staff and other employees of the company and its allied concerns and in that case on the aforesaid ratio of the decision of the Bombay High Court, which we approve, the object clause in question would fall short of creating any public charitable trust. In this connection we may also refer to two decisions, one of Calcutta High Court and another of Allahabad High Court, to which our attention was drawn by Dr. Gauri Shankar for the Revenue. In the case of Mercantile Bank of India (Agency), Ltd., (supra) a Division Bench of the Calcutta High Court speaking through Derbyshire, C.J., held that in order to constitute a valid charitable trust it should be for the benefit of the public or the specified section of it. A fluctuating body of private individuals such as the present and future officers and members of the staff and other employees of a company could not be a part of the general public or of any section of the public and therefore the income of the trust fund was not exempt from the payment of income-tax under Section 4(3)(i). It was further observed that Andrew Yule &Co. Ltd., and their subsidiary concerns for whose employees benefit was conferred under the deed employed a large number of persons. The trust was for the benefit of the past, present and future officers, members of the staff and other employees of those concerns. Anyone from the Secretary or some other highly paid member of the staff down to the lowest menial may be included within the benefit of this fund. Necessitous circumstances might include the case of a superior employee earning some thousands of rupees per month, who owing to some misfortune - say the burning down of his house, or the loss of his property - might find himself suddenly in Necessitous circumstances, and in need of money to replace his lost property. The learned Judge could see no reason why the administrators of the fund should not be in a position to make a grant to such a person to make up his loss. It might be a most desirable thing to do and the administrators might justly think that they had used some of the funds to the best advantage. But such use cannot be said to be for the relief of poverty. Even if (as had been argued) the administrators are bound to use this fund solely "to relieve persons suffering from indigence, ill-health or other Necessitous circumstances, " it was impossible to say that the fund is - to use the words of the section - "property held in trust wholly for charitable purposes." A Division Bench of the Allahabad High Court in the case of J.K. Hosiery Factory (supra) had an occasion to consider the very same clause of the rectified deed of 1945.It is of course true that the said decision was rendered in assessment proceedings of the firm wherein respondent- assessee was a partner and not in the assessment proceedings of the respondent firm itself. Still the interpretation placed on the very same Trust Deed as rectified in 1945 in proceedings to which respondent-assessee was a party in another capacity cannot be said to be totallywe have discussed earlier the term workmen in general when read in the context socio-economic situation prevailing in 1945 in this country and when also considered in the context of construction of residential quarters, chawls or buildings in Kanpur may partake the character of a well defined class of workmen in Kanpur city who ma y be poor and needy, still as the trustees are enjoined to construct residential quarters, Chawls or buildings in particular for the workmen, staff and other employees of the company it follows that other employees of the company who are the beneficiaries may not necessarily be poor or needy or affluent. We, therefore, concur with the second part of the reasoning of Allahabad High Court in the aforesaid judgment though we are not in a position to subscribe to the general proposition that construction of residential colonies for workmen in general cannot by itself be regarded as an object of public charity. As a result of the aforesaid discussion, therefore, it must be held that rectified clause 2(b)(i) of 1945 deed fell short of projecting an object of a public charitable nature and it could not be said that under the rectified deed of 1945 the trust properties were held by respondent-trust wholly for religious or charitable purposes. It is of course true that rest of the sub-clauses of clause 2(b) did refer to charitable objects but as one of the objects was not of a public charitable nature it could not be held that the entire trust was wholly for religious or charitableour view the said Explanation cannot be of any avil to the respondent-assessee so far as the rectified deed of 1945 is concerned. The emphasis in the Explanation is on charitable objects of general public utility like relief of poor, education, medical relief and advancement of any other object of general public utility. Once it is held that clause 2(b)(i) of 1945 rectification deed imposed an obligation on the trustees to utilise the trust property for the benefit of the settlor companys own workmen and employees, it would cease to be projecting an object of providing relief to poor workmen only. Nor would it advance any other object of general public utility but would be confined to the utility of a well defined class of employees and workmen of the settlor company and its allied concerns only. For all these reasons, therefore, it is not possible to accept the submission of Shri Verma, learned senior counsel for respondent-assessee based on this Explanation. This contention, therefore, stands rejected. | 1 | 16,704 | 6,545 | ### Instruction:
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of the fund should not be in a position to make a grant to such a person to make up his loss. It might be a most desirable thing to do and the administrators might justly think that they had used some of the funds to the best advantage. But such use cannot be said to be for the relief of poverty. Even if (as had been argued) the administrators are bound to use this fund solely "to relieve persons suffering from indigence, ill-health or other Necessitous circumstances, " it was impossible to say that the fund is - to use the words of the section - "property held in trust wholly for charitable purposes." A Division Bench of the Allahabad High Court in the case of J.K. Hosiery Factory (supra) had an occasion to consider the very same clause of the rectified deed of 1945.It is of course true that the said decision was rendered in assessment proceedings of the firm wherein respondent- assessee was a partner and not in the assessment proceedings of the respondent firm itself. Still the interpretation placed on the very same Trust Deed as rectified in 1945 in proceedings to which respondent-assessee was a party in another capacity cannot be said to be totally irrelevant. H.N. Seth, J., speaking for the Division Bench made the following observations in this connection: "We are doubtful whether the construction of residential colony for workmen in general can be regarded as an object of public charity. While enabling the trustees to construct residential quarters, etc ., for the benefit of the workmen in general, the settlor made it clear that such buildings were not to be constructed for the benefit of the public in general. The expression "workmen in general" does not fix a definite class of public which is in tended to be benefited under the deed. What types of employees or workers can be said to be covered by this expression is not at all clear." 27. Moreover, the precise language used by the settlor is "to erect ... residential quarters, etc., for the w orkmen in general and in particular for the workmen, staff and other employees of the company or other allied concerns under the management of ..." *. This shows that the expression "workmen in general" was not intended to mean merely poor labourers. The expression was intended to cover even such classes of persons who might be employed in any concern in any capacity whatsoever and who may be drawing high salaries. Making a provision for constructing residential quarters, etc., for the benefit of the employees irrespective of whether they are poor or not, can hardly be said to be a charitable object or a work of general public utility." * 28. As we have discussed earlier the term workmen in general when read in the context socio-economic situation prevailing in 1945 in this country and when also considered in the context of construction of residential quarters, chawls or buildings in Kanpur may partake the character of a well defined class of workmen in Kanpur city who ma y be poor and needy, still as the trustees are enjoined to construct residential quarters, Chawls or buildings in particular for the workmen, staff and other employees of the company it follows that other employees of the company who are the beneficiaries may not necessarily be poor or needy or affluent. We, therefore, concur with the second part of the reasoning of Allahabad High Court in the aforesaid judgment though we are not in a position to subscribe to the general proposition that construction of residential colonies for workmen in general cannot by itself be regarded as an object of public charity. As a result of the aforesaid discussion, therefore, it must be held that rectified clause 2(b)(i) of 1945 deed fell short of projecting an object of a public charitable nature and it could not be said that under the rectified deed of 1945 the trust properties were held by respondent-trust wholly for religious or charitable purposes. It is of course true that rest of the sub-clauses of clause 2(b) did refer to charitable objects but as one of the objects was not of a public charitable nature it could not be held that the entire trust was wholly for religious or charitable purposes. 29. Now is left the consideration of one submission of Shri Verma, learned senior counsel for the Respondent who relied upon Explanation to sub-section (3) of Section 4 of 1922 Act which read as under: "In this sub-section charitable purpose includes relief of the poor, education, medical relief and advancement of any other object of general public utility, but nothing contained in clause (i) or clause (ii) shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not ensure for the benefit of the public." * 30. In our view the said Explanation cannot be of any avil to the respondent-assessee so far as the rectified deed of 1945 is concerned. The emphasis in the Explanation is on charitable objects of general public utility like relief of poor, education, medical relief and advancement of any other object of general public utility. Once it is held that clause 2(b)(i) of 1945 rectification deed imposed an obligation on the trustees to utilise the trust property for the benefit of the settlor companys own workmen and employees, it would cease to be projecting an object of providing relief to poor workmen only. Nor would it advance any other object of general public utility but would be confined to the utility of a well defined class of employees and workmen of the settlor company and its allied concerns only. For all these reasons, therefore, it is not possible to accept the submission of Shri Verma, learned senior counsel for respondent-assessee based on this Explanation. This contention, therefore, stands rejected. Conclusions 31. -----------
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the clause, it becomes clear that reference to workmen in general becomes illusory and the settlement can be said to be in substance meant only for catering to the needs of a well defined group of persons, namely, workmen, staff and other employees of the company and its allied concerns and in that case on the aforesaid ratio of the decision of the Bombay High Court, which we approve, the object clause in question would fall short of creating any public charitable trust. In this connection we may also refer to two decisions, one of Calcutta High Court and another of Allahabad High Court, to which our attention was drawn by Dr. Gauri Shankar for the Revenue. In the case of Mercantile Bank of India (Agency), Ltd., (supra) a Division Bench of the Calcutta High Court speaking through Derbyshire, C.J., held that in order to constitute a valid charitable trust it should be for the benefit of the public or the specified section of it. A fluctuating body of private individuals such as the present and future officers and members of the staff and other employees of a company could not be a part of the general public or of any section of the public and therefore the income of the trust fund was not exempt from the payment of income-tax under Section 4(3)(i). It was further observed that Andrew Yule &Co. Ltd., and their subsidiary concerns for whose employees benefit was conferred under the deed employed a large number of persons. The trust was for the benefit of the past, present and future officers, members of the staff and other employees of those concerns. Anyone from the Secretary or some other highly paid member of the staff down to the lowest menial may be included within the benefit of this fund. Necessitous circumstances might include the case of a superior employee earning some thousands of rupees per month, who owing to some misfortune - say the burning down of his house, or the loss of his property - might find himself suddenly in Necessitous circumstances, and in need of money to replace his lost property. The learned Judge could see no reason why the administrators of the fund should not be in a position to make a grant to such a person to make up his loss. It might be a most desirable thing to do and the administrators might justly think that they had used some of the funds to the best advantage. But such use cannot be said to be for the relief of poverty. Even if (as had been argued) the administrators are bound to use this fund solely "to relieve persons suffering from indigence, ill-health or other Necessitous circumstances, " it was impossible to say that the fund is - to use the words of the section - "property held in trust wholly for charitable purposes." A Division Bench of the Allahabad High Court in the case of J.K. Hosiery Factory (supra) had an occasion to consider the very same clause of the rectified deed of 1945.It is of course true that the said decision was rendered in assessment proceedings of the firm wherein respondent- assessee was a partner and not in the assessment proceedings of the respondent firm itself. Still the interpretation placed on the very same Trust Deed as rectified in 1945 in proceedings to which respondent-assessee was a party in another capacity cannot be said to be totallywe have discussed earlier the term workmen in general when read in the context socio-economic situation prevailing in 1945 in this country and when also considered in the context of construction of residential quarters, chawls or buildings in Kanpur may partake the character of a well defined class of workmen in Kanpur city who ma y be poor and needy, still as the trustees are enjoined to construct residential quarters, Chawls or buildings in particular for the workmen, staff and other employees of the company it follows that other employees of the company who are the beneficiaries may not necessarily be poor or needy or affluent. We, therefore, concur with the second part of the reasoning of Allahabad High Court in the aforesaid judgment though we are not in a position to subscribe to the general proposition that construction of residential colonies for workmen in general cannot by itself be regarded as an object of public charity. As a result of the aforesaid discussion, therefore, it must be held that rectified clause 2(b)(i) of 1945 deed fell short of projecting an object of a public charitable nature and it could not be said that under the rectified deed of 1945 the trust properties were held by respondent-trust wholly for religious or charitable purposes. It is of course true that rest of the sub-clauses of clause 2(b) did refer to charitable objects but as one of the objects was not of a public charitable nature it could not be held that the entire trust was wholly for religious or charitableour view the said Explanation cannot be of any avil to the respondent-assessee so far as the rectified deed of 1945 is concerned. The emphasis in the Explanation is on charitable objects of general public utility like relief of poor, education, medical relief and advancement of any other object of general public utility. Once it is held that clause 2(b)(i) of 1945 rectification deed imposed an obligation on the trustees to utilise the trust property for the benefit of the settlor companys own workmen and employees, it would cease to be projecting an object of providing relief to poor workmen only. Nor would it advance any other object of general public utility but would be confined to the utility of a well defined class of employees and workmen of the settlor company and its allied concerns only. For all these reasons, therefore, it is not possible to accept the submission of Shri Verma, learned senior counsel for respondent-assessee based on this Explanation. This contention, therefore, stands rejected.
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Tata Chemicals Ltd Vs. Its Workmen | a highly integrated chemical complex based on the solar evaporation of sea water in India is the largest solar salt producing concern in the country. The statistics also show that production of soda ash in diverse forms by the appellant Company for the relevant years is considerably higher than the combined production of soda ash of Dharangadhra Chemicals and Saurashtra Chemicals-the two other concerns in the Saurashtra region. The statistics also establish that there is no other heavy Chemicals Concern in the region which can be favorably compared to the appellant Company in so far as the nature, and extent of business, capital outlay, percentage of gross and net profits, strength of labour force, reserves, dividends on Equity Share prospects of future business are concerned. As in Chart (Exh. 13(26) show s that the percentage of wages in the appellant Company is the lowest amongst the seven companies listed therein. Considering all the relevant factors which are to be born in mind in fixing the Dearness Allowance, it is evident that the appellant Company holds a unique position in heavy chemicals in the region. It is in these circumstances that the Industrial Tribunal was constrained to turn to similar industries in Gujarat and found in the light of the aforesaid guiding factors that Sarabhai Chemicals, Baroda was the nearest similar industry which could legitimately serve as a comparable concern. The statistics also establish that besides Sarabhai Chemicals, Baroda, Anil Starch, Ahmedabad, Alembic Chemicals Works, Baroda, Attul Products, Bulsar and Ahmadabad Manufacturing and Calico Printing Co. Ltd. which are included in the list of heavy chemical factories covered by the Wage Board were paying 100% of Textile Dearness Allowance to it s workmen. It is also evident from Exhibit 23 that the total pay packet paid to Mithapur , workers was much less as compared to the total pay packet of the workers in other chemical and pharmaceutical companies alluded to in Exhibit 23 . The material on the-record also makes it abundantly clear that the appellant Company has been making huge profits over the years and its financial position is so stable that it could not only give Variable Dearness Allowance on the basis of what was being paid to the workmen in the Textile Industry but could pay even higher allowance as was being paid to its workmen in the Head Office at Bombay. The Tribunal was, therefore, justified in linking the Dearness-Allowance in , question to t he Textile Dearness Allowance paid to the industrial workers at Ahmedabad which is based on the Report of Family Living Survey among industrial Workers at Ahmedabad, 1958-59, complied as a result of the joint investigation carried on in a rational and scientific manner by several institutions viz. Labour Bureau, Ministry of Labour &Employment. Government of India, clinical Advisory Committee on Cost of Living Index Numbers consisting of representatives of the Ministry of Labour &Employment, Food and Agriculture Finance, Planning Commission, the National Sample Survey Directorate, the Department of Statics (C.S.O), the Indian Statistical Institute and the Reserve Bank of India etc. leading to the construction of Consumer Price Index Number for the working class which was accepted as reliable by this Court in Ahemedabad Mill Owners Association etc. v. The Textile Labour Association.([1966] 1 S.C.R. 382.) We are, therefore, of the opinion that not withstanding the implementation of he recommendations of the Wage Board, there was nothing wrong a )out the linking of the scheme of the Dearness Allowance with the Ahmedabad Cost of Living Index , Number known as Textile Dearness Allowance as before the revision in 1974. Re: Question No. 5: This takes us to determination of the last question. The decision of this Court in Bengal Chemical and Pharmaceutical works Ltd. and Its Workmen &Anr ([1969] 1 L.L.J. 751, 758) no doubt shows that in , fixing wages and Dearness Allowance, the Industry cum-region formula is inter alia to be kept in view. At the same time, it has to be borne in mind that there can be no comparison between a small struggling concern and a large flourishing unit. It follows therefore, that when there is a large disparity between the two concerns engaged in the same line of business in a region with which the industrial Court is dealing is not safe to fix the same wage structure for the large flourishing concern of long standing as obtains in a small struggling concern. (See French Motor Car Company Ltd. and Their Workmen([1962] 2 L.L.J. 744.). It cannot also be lost sight of that with the march of time, the narrow concept of Industry-cum -Region is fast charging and too much importance cannot be attached to region. The modem trends in industrial law seem to lay greater accent on the similarity of industry rather than on the region. It was observed by this Court in Workmen of New Egerton Woollen Mills and New Egerton Woollen Mills &Ors.([1969] 2 L.L.J. 782.) that where there are no comparable concerns in the same industry in the region, the Tribunal can look to concerns in other industries in the region for comparison but in that case. such concern should be as similar as possible and not disproportionately large or absolutely dissimilar. On the parity of reasoning, it is reasonable to conclude that where there are no comparable concerns engaged in similar industry in t he region, it is permissible for the Industrial Tribunal or Court to look to such similar industries or industries as nearly similar as possible in adjoining or other region in the State having similar economic conditions.As in the instant case there was no comparable concern engaged in the line of business similar to that of the appellant Company in the Saurashtra region, the Industrial Tribunal did not in our opinion, commit any error in taking into consideration for the purpose of comparison the Dearness Allowance paid by Sarabhai Chemicals and other concerns of the like or approximately Eke magnitude in other parts of the State of Gujarat.15. | 0[ds]The legal position emerging from the aforementioned provisions of the Act being clear, we now proceed to tackle the questions set out above.As the first two questions are inseparably linked up, we propose to deal with them together. Although, prima facie there seems to be considerable force in the Sanghs stand that paras 2.3, 3.1, 3.2 and 3.3 of the aforesaid agreement of December 14, 1973 arrived at between the Employees Union and the appellant Company related only to the special pay and did not cover the Sanghs demand for Variable Dearness Allowance linked to the Ahmedabad cost of living index, we do not consider it necessary ;to go into this question, as the said agreement not having been arrived at during the course of a conciliation proceeding, it could not, according to section 18(1) of the Act bind any one other than the parties thereto. A fortlori, the fact that the Employees Union which hod been duly recognised under the Code of Discipline arrived at the aforesaid agreement with the appellant Company would not operate as a legal impediment in the way of the Sangh (which was not a party to the agreement)to raise a demand or dispute with regard to the Variable Dearness Allowance linked to Ahmedabad cost of living index or affect the validity of the reference by the Government or the jurisdiction of the Industrial Tribunal to go into the dispute. The conclusion that a minority union can validly raise an industrial dispute gains support from section 2(k) of the Act which does not restrict the ambit of the definition of industrial dispute to a dispute between an employer and a recognised majority union but takes within its wide sweep, any dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in M/s. Dharampal Premchand v. M/s. Dharampal Premchand (Saughandhi) ([1965] 3 S.C.R.394)It may also be relevant to mention in this connection that both the counsel for the Employees Union and the counsel for the appellant Company admitted before the Industrial Tribunal that the aforesaid agreement had been terminated by two months notice (See p. 39 of the Industrial Tribunals Award). We have, therefore, no hesitation in holding that neither the Sangh was precluded from raising the demand or the dispute, nor was the Government debarred from making the reference nor was the Industrial Tribunals competence to go into the dispute and make the award affected in any manner. The first two questions are decidedQuestion No. 3:-This question is no longer res integra. In Jhagrakhan Collieries (P) Ltd. v. Shri G. C. Agarwal, Presiding Officer, Central Government Industrial Tribunal-cum-Labolur Court, Jabalpur &Ors. (supra) Sarkaria, J. speaking for the Bench observed that"an implied agreement by acquiescence, or by conduct such as acceptance of a benefit under an agreement to which the worker acquiescing or accepting the benefit was not a party, being outside the purview of the Act, is not binding on such a worker either under subsection (1) or under sub-section (3) of section 18. It follows, therefore, that even if 99% of the workers have impliedly accepted the agreement arrived at by drawing V.D.A. under it, will not-whatever its effect under the general law-put an end to the dispute before the Labour Court and make it functus officio under thethe theory of implied agreement by acquiescence sought to be built up on behalf of the appellant on the basis of the acceptance of the benefits flowing from the agreement even by the workmen who were not signatories to the settlement is of no avail to the appellant Company and cannot operate as an estoppel against the Sangh or its members.Re: Question No. 4: It is a matter of common knowledge that the spiral of prices has been constantly rising, and the basket of goods and services has been costing more and more day after day since the outbreak of the Second World War in September, 1939. It is equally well known and indeed is not disputed that in the relevant years the prices of essential commodities and cost of living have been comparatively higher at Mithapur that at other places in the districts like Jamnagar, Dharangadhra, Porbandar, Bhavnagar etc. and the appellant Company ha d not been maintaining uniform standard of Dearness Allowance, and had been paying higher Dearness Allowance to the workmen in its Head Office at Bombay than to its workmen at Mithapur. The statistics extracted from various annual reports etc. exhibited in the case particularly Exhibit 13(6) go to show that the appellant Company which, was established more th in 40 years ago besides being a highly integrated chemical complex based on the solar evaporation of sea water in India is the largest solar salt producing concern in the country. The statistics also show that production of soda ash in diverse forms by the appellant Company for the relevant years is considerably higher than the combined production of soda ash of Dharangadhra Chemicals and Saurashtra Chemicals-the two other concerns in the Saurashtra region. The statistics also establish that there is no other heavy Chemicals Concern in the region which can be favorably compared to the appellant Company in so far as the nature, and extent of business, capital outlay, percentage of gross and net profits, strength of labour force, reserves, dividends on Equity Share prospects of future business are concerned. As in Chart (Exh. 13(26) show s that the percentage of wages in the appellant Company is the lowest amongst the seven companies listed therein. Considering all the relevant factors which are to be born in mind in fixing the Dearness Allowance, it is evident that the appellant Company holds a unique position in heavy chemicals in the region. It is in these circumstances that the Industrial Tribunal was constrained to turn to similar industries in Gujarat and found in the light of the aforesaid guiding factors that Sarabhai Chemicals, Baroda was the nearest similar industry which could legitimately serve as a comparable concern. The statistics also establish that besides Sarabhai Chemicals, Baroda, Anil Starch, Ahmedabad, Alembic Chemicals Works, Baroda, Attul Products, Bulsar and Ahmadabad Manufacturing and Calico Printing Co. Ltd. which are included in the list of heavy chemical factories covered by the Wage Board were paying 100% of Textile Dearness Allowance to it s workmen. It is also evident from Exhibit 23 that the total pay packet paid to Mithapur , workers was much less as compared to the total pay packet of the workers in other chemical and pharmaceutical companies alluded to in Exhibit 23 . The material on the-record also makes it abundantly clear that the appellant Company has been making huge profits over the years and its financial position is so stable that it could not only give Variable Dearness Allowance on the basis of what was being paid to the workmen in the Textile Industry but could pay even higher allowance as was being paid to its workmen in the Head Office at Bombay. The Tribunal was, therefore, justified in linking the Dearness-Allowance in , question to t he Textile Dearness Allowance paid to the industrial workers at Ahmedabad which is based on the Report of Family Living Survey among industrial Workers at Ahmedabad, 1958-59, complied as a result of the joint investigation carried on in a rational and scientific manner by several institutions viz. Labour Bureau, Ministry of Labour &Employment. Government of India, clinical Advisory Committee on Cost of Living Index Numbers consisting of representatives of the Ministry of Labour &Employment, Food and Agriculture Finance, Planning Commission, the National Sample Survey Directorate, the Department of Statics (C.S.O), the Indian Statistical Institute and the Reserve Bank of India etc. leading to the construction of Consumer Price Index Number for the working class which was accepted as reliable by this Court in Ahemedabad Mill Owners Association etc. v. The Textile Labour Association.([1966] 1 S.C.R. 382.) We are, therefore, of the opinion that not withstanding the implementation of he recommendations of the Wage Board, there was nothing wrong a )out the linking of the scheme of the Dearness Allowance with the Ahmedabad Cost of Living Index , Number known as Textile Dearness Allowance as before the revision in 1974. Re: Question No. 5: This takes us to determination of the last question. The decision of this Court in Bengal Chemical and Pharmaceutical works Ltd. and Its Workmen &Anr ([1969] 1 L.L.J. 751, 758) no doubt shows that in , fixing wages and Dearness Allowance, the Industry cum-region formula is inter alia to be kept in view. At the same time, it has to be borne in mind that there can be no comparison between a small struggling concern and a large flourishing unit. It follows therefore, that when there is a large disparity between the two concerns engaged in the same line of business in a region with which the industrial Court is dealing is not safe to fix the same wage structure for the large flourishing concern of long standing as obtains in a small struggling concern. (See French Motor Car Company Ltd. and Their Workmen([1962] 2 L.L.J. 744.). It cannot also be lost sight of that with the march of time, the narrow concept of Industry-cum -Region is fast charging and too much importance cannot be attached to region. The modem trends in industrial law seem to lay greater accent on the similarity of industry rather than on the region. It was observed by this Court in Workmen of New Egerton Woollen Mills and New Egerton Woollen Mills &Ors.([1969] 2 L.L.J. 782.) that where there are no comparable concerns in the same industry in the region, the Tribunal can look to concerns in other industries in the region for comparison but in that case. such concern should be as similar as possible and not disproportionately large or absolutely dissimilar. On the parity of reasoning, it is reasonable to conclude that where there are no comparable concerns engaged in similar industry in t he region, it is permissible for the Industrial Tribunal or Court to look to such similar industries or industries as nearly similar as possible in adjoining or other region in the State having similar economic conditions.As in the instant case there was no comparable concern engaged in the line of business similar to that of the appellant Company in the Saurashtra region, the Industrial Tribunal did not in our opinion, commit any error in taking into consideration for the purpose of comparison the Dearness Allowance paid by Sarabhai Chemicals and other concerns of the like or approximately Eke magnitude in other parts of the State of Gujarat. | 0 | 5,232 | 1,990 | ### 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:
a highly integrated chemical complex based on the solar evaporation of sea water in India is the largest solar salt producing concern in the country. The statistics also show that production of soda ash in diverse forms by the appellant Company for the relevant years is considerably higher than the combined production of soda ash of Dharangadhra Chemicals and Saurashtra Chemicals-the two other concerns in the Saurashtra region. The statistics also establish that there is no other heavy Chemicals Concern in the region which can be favorably compared to the appellant Company in so far as the nature, and extent of business, capital outlay, percentage of gross and net profits, strength of labour force, reserves, dividends on Equity Share prospects of future business are concerned. As in Chart (Exh. 13(26) show s that the percentage of wages in the appellant Company is the lowest amongst the seven companies listed therein. Considering all the relevant factors which are to be born in mind in fixing the Dearness Allowance, it is evident that the appellant Company holds a unique position in heavy chemicals in the region. It is in these circumstances that the Industrial Tribunal was constrained to turn to similar industries in Gujarat and found in the light of the aforesaid guiding factors that Sarabhai Chemicals, Baroda was the nearest similar industry which could legitimately serve as a comparable concern. The statistics also establish that besides Sarabhai Chemicals, Baroda, Anil Starch, Ahmedabad, Alembic Chemicals Works, Baroda, Attul Products, Bulsar and Ahmadabad Manufacturing and Calico Printing Co. Ltd. which are included in the list of heavy chemical factories covered by the Wage Board were paying 100% of Textile Dearness Allowance to it s workmen. It is also evident from Exhibit 23 that the total pay packet paid to Mithapur , workers was much less as compared to the total pay packet of the workers in other chemical and pharmaceutical companies alluded to in Exhibit 23 . The material on the-record also makes it abundantly clear that the appellant Company has been making huge profits over the years and its financial position is so stable that it could not only give Variable Dearness Allowance on the basis of what was being paid to the workmen in the Textile Industry but could pay even higher allowance as was being paid to its workmen in the Head Office at Bombay. The Tribunal was, therefore, justified in linking the Dearness-Allowance in , question to t he Textile Dearness Allowance paid to the industrial workers at Ahmedabad which is based on the Report of Family Living Survey among industrial Workers at Ahmedabad, 1958-59, complied as a result of the joint investigation carried on in a rational and scientific manner by several institutions viz. Labour Bureau, Ministry of Labour &Employment. Government of India, clinical Advisory Committee on Cost of Living Index Numbers consisting of representatives of the Ministry of Labour &Employment, Food and Agriculture Finance, Planning Commission, the National Sample Survey Directorate, the Department of Statics (C.S.O), the Indian Statistical Institute and the Reserve Bank of India etc. leading to the construction of Consumer Price Index Number for the working class which was accepted as reliable by this Court in Ahemedabad Mill Owners Association etc. v. The Textile Labour Association.([1966] 1 S.C.R. 382.) We are, therefore, of the opinion that not withstanding the implementation of he recommendations of the Wage Board, there was nothing wrong a )out the linking of the scheme of the Dearness Allowance with the Ahmedabad Cost of Living Index , Number known as Textile Dearness Allowance as before the revision in 1974. Re: Question No. 5: This takes us to determination of the last question. The decision of this Court in Bengal Chemical and Pharmaceutical works Ltd. and Its Workmen &Anr ([1969] 1 L.L.J. 751, 758) no doubt shows that in , fixing wages and Dearness Allowance, the Industry cum-region formula is inter alia to be kept in view. At the same time, it has to be borne in mind that there can be no comparison between a small struggling concern and a large flourishing unit. It follows therefore, that when there is a large disparity between the two concerns engaged in the same line of business in a region with which the industrial Court is dealing is not safe to fix the same wage structure for the large flourishing concern of long standing as obtains in a small struggling concern. (See French Motor Car Company Ltd. and Their Workmen([1962] 2 L.L.J. 744.). It cannot also be lost sight of that with the march of time, the narrow concept of Industry-cum -Region is fast charging and too much importance cannot be attached to region. The modem trends in industrial law seem to lay greater accent on the similarity of industry rather than on the region. It was observed by this Court in Workmen of New Egerton Woollen Mills and New Egerton Woollen Mills &Ors.([1969] 2 L.L.J. 782.) that where there are no comparable concerns in the same industry in the region, the Tribunal can look to concerns in other industries in the region for comparison but in that case. such concern should be as similar as possible and not disproportionately large or absolutely dissimilar. On the parity of reasoning, it is reasonable to conclude that where there are no comparable concerns engaged in similar industry in t he region, it is permissible for the Industrial Tribunal or Court to look to such similar industries or industries as nearly similar as possible in adjoining or other region in the State having similar economic conditions.As in the instant case there was no comparable concern engaged in the line of business similar to that of the appellant Company in the Saurashtra region, the Industrial Tribunal did not in our opinion, commit any error in taking into consideration for the purpose of comparison the Dearness Allowance paid by Sarabhai Chemicals and other concerns of the like or approximately Eke magnitude in other parts of the State of Gujarat.15.
### Response:
0
### Explanation:
a highly integrated chemical complex based on the solar evaporation of sea water in India is the largest solar salt producing concern in the country. The statistics also show that production of soda ash in diverse forms by the appellant Company for the relevant years is considerably higher than the combined production of soda ash of Dharangadhra Chemicals and Saurashtra Chemicals-the two other concerns in the Saurashtra region. The statistics also establish that there is no other heavy Chemicals Concern in the region which can be favorably compared to the appellant Company in so far as the nature, and extent of business, capital outlay, percentage of gross and net profits, strength of labour force, reserves, dividends on Equity Share prospects of future business are concerned. As in Chart (Exh. 13(26) show s that the percentage of wages in the appellant Company is the lowest amongst the seven companies listed therein. Considering all the relevant factors which are to be born in mind in fixing the Dearness Allowance, it is evident that the appellant Company holds a unique position in heavy chemicals in the region. It is in these circumstances that the Industrial Tribunal was constrained to turn to similar industries in Gujarat and found in the light of the aforesaid guiding factors that Sarabhai Chemicals, Baroda was the nearest similar industry which could legitimately serve as a comparable concern. The statistics also establish that besides Sarabhai Chemicals, Baroda, Anil Starch, Ahmedabad, Alembic Chemicals Works, Baroda, Attul Products, Bulsar and Ahmadabad Manufacturing and Calico Printing Co. Ltd. which are included in the list of heavy chemical factories covered by the Wage Board were paying 100% of Textile Dearness Allowance to it s workmen. It is also evident from Exhibit 23 that the total pay packet paid to Mithapur , workers was much less as compared to the total pay packet of the workers in other chemical and pharmaceutical companies alluded to in Exhibit 23 . The material on the-record also makes it abundantly clear that the appellant Company has been making huge profits over the years and its financial position is so stable that it could not only give Variable Dearness Allowance on the basis of what was being paid to the workmen in the Textile Industry but could pay even higher allowance as was being paid to its workmen in the Head Office at Bombay. The Tribunal was, therefore, justified in linking the Dearness-Allowance in , question to t he Textile Dearness Allowance paid to the industrial workers at Ahmedabad which is based on the Report of Family Living Survey among industrial Workers at Ahmedabad, 1958-59, complied as a result of the joint investigation carried on in a rational and scientific manner by several institutions viz. Labour Bureau, Ministry of Labour &Employment. Government of India, clinical Advisory Committee on Cost of Living Index Numbers consisting of representatives of the Ministry of Labour &Employment, Food and Agriculture Finance, Planning Commission, the National Sample Survey Directorate, the Department of Statics (C.S.O), the Indian Statistical Institute and the Reserve Bank of India etc. leading to the construction of Consumer Price Index Number for the working class which was accepted as reliable by this Court in Ahemedabad Mill Owners Association etc. v. The Textile Labour Association.([1966] 1 S.C.R. 382.) We are, therefore, of the opinion that not withstanding the implementation of he recommendations of the Wage Board, there was nothing wrong a )out the linking of the scheme of the Dearness Allowance with the Ahmedabad Cost of Living Index , Number known as Textile Dearness Allowance as before the revision in 1974. Re: Question No. 5: This takes us to determination of the last question. The decision of this Court in Bengal Chemical and Pharmaceutical works Ltd. and Its Workmen &Anr ([1969] 1 L.L.J. 751, 758) no doubt shows that in , fixing wages and Dearness Allowance, the Industry cum-region formula is inter alia to be kept in view. At the same time, it has to be borne in mind that there can be no comparison between a small struggling concern and a large flourishing unit. It follows therefore, that when there is a large disparity between the two concerns engaged in the same line of business in a region with which the industrial Court is dealing is not safe to fix the same wage structure for the large flourishing concern of long standing as obtains in a small struggling concern. (See French Motor Car Company Ltd. and Their Workmen([1962] 2 L.L.J. 744.). It cannot also be lost sight of that with the march of time, the narrow concept of Industry-cum -Region is fast charging and too much importance cannot be attached to region. The modem trends in industrial law seem to lay greater accent on the similarity of industry rather than on the region. It was observed by this Court in Workmen of New Egerton Woollen Mills and New Egerton Woollen Mills &Ors.([1969] 2 L.L.J. 782.) that where there are no comparable concerns in the same industry in the region, the Tribunal can look to concerns in other industries in the region for comparison but in that case. such concern should be as similar as possible and not disproportionately large or absolutely dissimilar. On the parity of reasoning, it is reasonable to conclude that where there are no comparable concerns engaged in similar industry in t he region, it is permissible for the Industrial Tribunal or Court to look to such similar industries or industries as nearly similar as possible in adjoining or other region in the State having similar economic conditions.As in the instant case there was no comparable concern engaged in the line of business similar to that of the appellant Company in the Saurashtra region, the Industrial Tribunal did not in our opinion, commit any error in taking into consideration for the purpose of comparison the Dearness Allowance paid by Sarabhai Chemicals and other concerns of the like or approximately Eke magnitude in other parts of the State of Gujarat.
|
C.I.T. Andhra Pradesh Vs. M/S Taj Mahal Hotel, Secunderabad | into.7. The case - J. Lyons and Company Limited v. Attorney-General (1944) 1 Ch 281 relied upon by the learned counsel for the appellant apart from being distinguishable hardly supports the contention of the appellant. In that case, it was held that electric lamps and fittings in a tea shop were not part of the apparatus used for carrying on the business but were part of the setting in which the business was carried on, and, therefore, were not "plant", within the meaning of certain provisions of the War Damage Act, 1943. It was observed at page 286 "if these articles are plant, it can only be by reason that they are found on premises exclusively devoted to trade purposes. Trade plant alone need be considered". The meaning of "plant" as given in Yarmouth v. France, (1887) 19 QB 647 was accepted as correct. According to that meaning "plant" includes whatever apparatus or instruments are used by a businessman in carrying on his business". In our judgment, the more apposite decision is that of the Court of Appeal in Jarrold (Inspector of Taxes) v. John Good and Sons Ltd. (1963) 1 WLR 214. There the nature of the assessees business required that its office accommodation should be capable of sub-division into a number of rooms varying in size etc. according to the requirements from time to time of the agencies which it carried on. The office accommodation consisted of a large open floor space in which partitions could be erected so as to sub-divide the floor space into a number of rooms of any size. Certain partitions were made which were screwed to the floor and ceiling only and could be easily moved if it was desired to alter the size or number of the rooms. The question was whether these partitions were plant within sections 279 and 280 of the English Income Tax Act, 1952, so as to entitle the company to allowances under those sections. There the material words in the statute were "where the person carrying on a trade in any year of assessment has incurred expenditure on the provision of machinery or plant for the purposes of the trade". It was held that the partitions were "plant" as they were used in the carrying out of the companys trade or business. Donovan, L. J. held that the partitions were used to enable the trader to cope with the vicissitudes of the business as it increased and diminished and relied on the finding of the commissioners that the flexibility of accommodation which the partitions provided was a commercial necessity for the company. Further illustrations were given of assets which would fall within the meaning of "plant". "The heating installation of building may be passive in the sense that it involves no moving machinery, but few would deny it the name of "plant". The same thing could, no doubt be said of many air conditioning and water softening installations."8. It cannot be denied that the business of a hotelier is carried on by adapting a building or premises in a suitable way to be used as a residential hotel where visitors come and stay and where there is arrangement for meals and other amenities are provided for their comfort and convenience. To have sanitary fittings etc. in a bath room is one of the essential amenities or conveniences which are normally provided in any good hotel, in the present times. If the partitions in Jarrolds case, (1963) 1 WLR 214 (supra) could be treated as having been used for the purpose of the business of the trader, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier. He can reasonably expect to get more customers and earn larger profit by charging higher rates for the use of rooms if the bath rooms have sanitary fittings and similar amenities. We are unable to see how the sanitary fittings in the bath rooms in a hotel will not be "plant" within S. 10 (vi) (b) read with S. 10 (5),when it is quite clear that the intention of the Legislature was to give a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of "plant". In decide cases, the High Courts have rightly understood the meaning of the term "plant" in a wide sense. (See. Commr. of Income-tax, U. P. v. Indian Turpentine and Rosin Co. Ltd. (1970) 75 ITR 533 (All)) .9. If the dictionary meaning of the word "plant" were to be taken into consideration on the principle that the literal construction of a statute must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question - this is what is stated in Websters Third New International Dictionary:"Land, buildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business. . ."10. It is, however, unnecessary to dwell more on the dictionary meaning because looking to the provisions of Act, we are satisfied that the assets in question were required by the nature of the hostel business which the assessee was carrying on. They were not merely a part of the setting in which hotel business was being carried on.11. The High Court was right in not accepting the reasoning of the Tribunal based on the rates relating to depreciation under S. 10 (2 (vi) and the assessee having claimed that the sanitary and pipe-line fittings fell within the meaning of "furniture and fittings" in R. 8 (2) of the Rules. It has been rightly observed that the Rules were meant only for the purpose of carrying out the provisions of the Act and they could not take away what was conferred by the Act or whittle down its effect. If the assessee had claimed higher depreciation allowance that would not detract from the meaning of the word "plant" in the clause (vi-b) of S. 10 (2). | 0[ds]6. Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means "that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it". In the present case, S. 10 (5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "statute". When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. The word "include" is also susceptible of other constructions which it is unnecessary to go into.If the dictionary meaning of the word "plant" were to be taken into consideration on the principle that the literal construction of a statute must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question - this is what is stated in Websters Third New Internationalbuildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business. . .It is, however, unnecessary to dwell more on the dictionary meaning because looking to the provisions of Act, we are satisfied that the assets in question were required by the nature of the hostel business which the assessee was carrying on. They were not merely a part of the setting in which hotel business was being carried on.11. The High Court was right in not accepting the reasoning of the Tribunal based on the rates relating to depreciation under S. 10 (2 (vi) and the assessee having claimed that the sanitary and pipe-line fittings fell within the meaning of "furniture and fittings" in R. 8 (2) of the Rules. It has been rightly observed that the Rules were meant only for the purpose of carrying out the provisions of the Act and they could not take away what was conferred by the Act or whittle down its effect. If the assessee had claimed higher depreciation allowance that would not detract from the meaning of the word "plant" in the clause (vi-b) of S. 10our judgment, the more apposite decision is that of the Court of Appeal in Jarrold(Inspector of Taxes) v. John Good and Sons Ltd. (1963) 1 WLR214. There the nature of the assessees business required that its office accommodation should be capable ofinto a number of rooms varying in size etc. according to the requirements from time to time of the agencies which it carried on. The office accommodation consisted of a large open floor space in which partitions could be erected so as tothe floor space into a number of rooms of any size. Certain partitions were made which were screwed to the floor and ceiling only and could be easily moved if it was desired to alter the size or number of the rooms. The question was whether these partitions were plant within sections 279 and 280 of the English Income Tax Act, 1952, so as to entitle the company to allowances under those sections. There the material words in the statute were "where the person carrying on a trade in any year of assessment has incurred expenditure on the provision of machinery or plant for the purposes of the trade". It was held that the partitions were "plant" as they were used in the carrying out of the companys trade or business. Donovan, L. J. held that the partitions were used to enable the trader to cope with the vicissitudes of the business as it increased and diminished and relied on the finding of the commissioners that the flexibility of accommodation which the partitions provided was a commercial necessity for the company. Further illustrations were given of assets which would fall within the meaning of "plant". "The heating installation of building may be passive in the sense that it involves no moving machinery, but few would deny it the name of "plant". The same thing could, no doubt be said of many air conditioning and water softening installations."8. It cannot be denied that the business of a hotelier is carried on by adapting a building or premises in a suitable way to be used as a residential hotel where visitors come and stay and where there is arrangement for meals and other amenities are provided for their comfort and convenience. To have sanitary fittings etc. in a bath room is one of the essential amenities or conveniences which are normally provided in any good hotel, in the present times. If the partitions in Jarrolds case, (1963) 1 WLR 214 (supra) could be treated as having been used for the purpose of the business of the trader, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier. He can reasonably expect to get more customers and earn larger profit by charging higher rates for the use of rooms if the bath rooms have sanitary fittings and similar amenities. We are unable to see how the sanitary fittings in the bath rooms in a hotel will not be "plant" within S. 10 (vi) (b) read with S. 10 (5),when it is quite clear that the intention of the Legislature was to give a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of "plant". In decide cases, the High Courts have rightly understood the meaning of the term "plant" in a wide sense. (See. Commr. ofU. P. v. Indian Turpentine and Rosin Co. Ltd. (1970) 75 ITR 533 (All)) . | 0 | 2,209 | 1,133 | ### 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:
into.7. The case - J. Lyons and Company Limited v. Attorney-General (1944) 1 Ch 281 relied upon by the learned counsel for the appellant apart from being distinguishable hardly supports the contention of the appellant. In that case, it was held that electric lamps and fittings in a tea shop were not part of the apparatus used for carrying on the business but were part of the setting in which the business was carried on, and, therefore, were not "plant", within the meaning of certain provisions of the War Damage Act, 1943. It was observed at page 286 "if these articles are plant, it can only be by reason that they are found on premises exclusively devoted to trade purposes. Trade plant alone need be considered". The meaning of "plant" as given in Yarmouth v. France, (1887) 19 QB 647 was accepted as correct. According to that meaning "plant" includes whatever apparatus or instruments are used by a businessman in carrying on his business". In our judgment, the more apposite decision is that of the Court of Appeal in Jarrold (Inspector of Taxes) v. John Good and Sons Ltd. (1963) 1 WLR 214. There the nature of the assessees business required that its office accommodation should be capable of sub-division into a number of rooms varying in size etc. according to the requirements from time to time of the agencies which it carried on. The office accommodation consisted of a large open floor space in which partitions could be erected so as to sub-divide the floor space into a number of rooms of any size. Certain partitions were made which were screwed to the floor and ceiling only and could be easily moved if it was desired to alter the size or number of the rooms. The question was whether these partitions were plant within sections 279 and 280 of the English Income Tax Act, 1952, so as to entitle the company to allowances under those sections. There the material words in the statute were "where the person carrying on a trade in any year of assessment has incurred expenditure on the provision of machinery or plant for the purposes of the trade". It was held that the partitions were "plant" as they were used in the carrying out of the companys trade or business. Donovan, L. J. held that the partitions were used to enable the trader to cope with the vicissitudes of the business as it increased and diminished and relied on the finding of the commissioners that the flexibility of accommodation which the partitions provided was a commercial necessity for the company. Further illustrations were given of assets which would fall within the meaning of "plant". "The heating installation of building may be passive in the sense that it involves no moving machinery, but few would deny it the name of "plant". The same thing could, no doubt be said of many air conditioning and water softening installations."8. It cannot be denied that the business of a hotelier is carried on by adapting a building or premises in a suitable way to be used as a residential hotel where visitors come and stay and where there is arrangement for meals and other amenities are provided for their comfort and convenience. To have sanitary fittings etc. in a bath room is one of the essential amenities or conveniences which are normally provided in any good hotel, in the present times. If the partitions in Jarrolds case, (1963) 1 WLR 214 (supra) could be treated as having been used for the purpose of the business of the trader, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier. He can reasonably expect to get more customers and earn larger profit by charging higher rates for the use of rooms if the bath rooms have sanitary fittings and similar amenities. We are unable to see how the sanitary fittings in the bath rooms in a hotel will not be "plant" within S. 10 (vi) (b) read with S. 10 (5),when it is quite clear that the intention of the Legislature was to give a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of "plant". In decide cases, the High Courts have rightly understood the meaning of the term "plant" in a wide sense. (See. Commr. of Income-tax, U. P. v. Indian Turpentine and Rosin Co. Ltd. (1970) 75 ITR 533 (All)) .9. If the dictionary meaning of the word "plant" were to be taken into consideration on the principle that the literal construction of a statute must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question - this is what is stated in Websters Third New International Dictionary:"Land, buildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business. . ."10. It is, however, unnecessary to dwell more on the dictionary meaning because looking to the provisions of Act, we are satisfied that the assets in question were required by the nature of the hostel business which the assessee was carrying on. They were not merely a part of the setting in which hotel business was being carried on.11. The High Court was right in not accepting the reasoning of the Tribunal based on the rates relating to depreciation under S. 10 (2 (vi) and the assessee having claimed that the sanitary and pipe-line fittings fell within the meaning of "furniture and fittings" in R. 8 (2) of the Rules. It has been rightly observed that the Rules were meant only for the purpose of carrying out the provisions of the Act and they could not take away what was conferred by the Act or whittle down its effect. If the assessee had claimed higher depreciation allowance that would not detract from the meaning of the word "plant" in the clause (vi-b) of S. 10 (2).
### Response:
0
### Explanation:
the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means "that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it". In the present case, S. 10 (5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "statute". When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. The word "include" is also susceptible of other constructions which it is unnecessary to go into.If the dictionary meaning of the word "plant" were to be taken into consideration on the principle that the literal construction of a statute must be adhered to unless the context renders it plain that such a construction cannot be put on the words in question - this is what is stated in Websters Third New Internationalbuildings, machinery, apparatus and fixtures employed in carrying on trade or other industrial business. . .It is, however, unnecessary to dwell more on the dictionary meaning because looking to the provisions of Act, we are satisfied that the assets in question were required by the nature of the hostel business which the assessee was carrying on. They were not merely a part of the setting in which hotel business was being carried on.11. The High Court was right in not accepting the reasoning of the Tribunal based on the rates relating to depreciation under S. 10 (2 (vi) and the assessee having claimed that the sanitary and pipe-line fittings fell within the meaning of "furniture and fittings" in R. 8 (2) of the Rules. It has been rightly observed that the Rules were meant only for the purpose of carrying out the provisions of the Act and they could not take away what was conferred by the Act or whittle down its effect. If the assessee had claimed higher depreciation allowance that would not detract from the meaning of the word "plant" in the clause (vi-b) of S. 10our judgment, the more apposite decision is that of the Court of Appeal in Jarrold(Inspector of Taxes) v. John Good and Sons Ltd. (1963) 1 WLR214. There the nature of the assessees business required that its office accommodation should be capable ofinto a number of rooms varying in size etc. according to the requirements from time to time of the agencies which it carried on. The office accommodation consisted of a large open floor space in which partitions could be erected so as tothe floor space into a number of rooms of any size. Certain partitions were made which were screwed to the floor and ceiling only and could be easily moved if it was desired to alter the size or number of the rooms. The question was whether these partitions were plant within sections 279 and 280 of the English Income Tax Act, 1952, so as to entitle the company to allowances under those sections. There the material words in the statute were "where the person carrying on a trade in any year of assessment has incurred expenditure on the provision of machinery or plant for the purposes of the trade". It was held that the partitions were "plant" as they were used in the carrying out of the companys trade or business. Donovan, L. J. held that the partitions were used to enable the trader to cope with the vicissitudes of the business as it increased and diminished and relied on the finding of the commissioners that the flexibility of accommodation which the partitions provided was a commercial necessity for the company. Further illustrations were given of assets which would fall within the meaning of "plant". "The heating installation of building may be passive in the sense that it involves no moving machinery, but few would deny it the name of "plant". The same thing could, no doubt be said of many air conditioning and water softening installations."8. It cannot be denied that the business of a hotelier is carried on by adapting a building or premises in a suitable way to be used as a residential hotel where visitors come and stay and where there is arrangement for meals and other amenities are provided for their comfort and convenience. To have sanitary fittings etc. in a bath room is one of the essential amenities or conveniences which are normally provided in any good hotel, in the present times. If the partitions in Jarrolds case, (1963) 1 WLR 214 (supra) could be treated as having been used for the purpose of the business of the trader, it is incomprehensible how sanitary fittings can be said to have no connection with the business of the hotelier. He can reasonably expect to get more customers and earn larger profit by charging higher rates for the use of rooms if the bath rooms have sanitary fittings and similar amenities. We are unable to see how the sanitary fittings in the bath rooms in a hotel will not be "plant" within S. 10 (vi) (b) read with S. 10 (5),when it is quite clear that the intention of the Legislature was to give a wide meaning and that is why articles like books and surgical instruments were expressly included in the definition of "plant". In decide cases, the High Courts have rightly understood the meaning of the term "plant" in a wide sense. (See. Commr. ofU. P. v. Indian Turpentine and Rosin Co. Ltd. (1970) 75 ITR 533 (All)) .
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Indian Carbon Limited Vs. Superintendent of Taxes, Gauhati and Others | 1964. The company then moved the High Court under Art. 226 of the Constitution which was dismissed.3. In the writ petition as also the return held in reply there to and before the High Court the provisions of certain other enactments were mentioned. These were the Assam Finance Sales Tax Act, 1956 as amended from time to time and the Assam (Sales of Petroleum and Petroleum Products ................) Act 1956 as amended. It is unnecessary to refer to their relevant provision because before it is common ground that the tax would be payable under the Assam Act, the only question being about the rate. Under the Assam Act, the rate chargeable was 5 paise per rupee. But it has been claimed on behalf of the appellant that by virtue of the provisions of the Central Sales Tax Act 1956, hereinafter called the "Act", the rate at which the tax would be payable is 2 paise per rupee.4. Section 14 declares, interalia, that coal including coke in all its forms constitutes goods which are of special importance in inter-State trade or commerce. Section 15(1) of the Central Act as it stood at the relevant time was in the following terms :S. 15 "Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions namely :(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed (two per cent) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage.(b) ................"It may be mentioned that by Amending Act 13 of 1966, 3% was submitted for 2% with effect from July 1, 1966.5. It is not disputed that if petroleum coke is covered by clause (i) of sec. 14 which reads "coal including coke in all its forms" the State was not competent to levy tax at a rate exceeding the one given in sec. 15(a) of the Central Act. Before the High Court it was common ground that petroleum is used mainly in industries dealing with the manufacture of carbon products and it differs in material constituents, quality, utility and composition from the ordinary coke used as fuel. It is used largely in the manufacture of dry cells, carbon electrodes and electric furnace resistance element. Reference has also been made in the judgment to what is stated in "Chemical Engineers" Hand book, 3rd Edn., at page 1556 :-"Coke is a hard, dense infusible carbonisation residue that ranges from a dull gray-black to a silvery gray; the latter is characteristic of good quality high temperature coke. A coke of this type makes a ringing sound when dropped or struck with a hard object. It exhibits a porous cell cellular structure, which primarily depends upon the kind of coal used & the rate of heating during the carbonization process"The High Court was of the view that the word coal includes coke in all its forms in clause (i) of sec. 14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, of the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.6. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit of clause (i) of section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in para 2 that "coke is the refuse left after distillation of coal, shale or oil and is called petroleum coke, Metellurgical coke or pitch coke, to indicate its source or origin; but all these are carbonacious material used for the same purpose and having same properties, more or less, main being.- Mixed Carbon, - Volatile Matters,- Ash and - Moisture, "In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this a statement which does not appear to have been properly denied. All that has been stated in para 5 is that the word "coke" in clause 9(i) of sec. 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. I which is as follows :-"The infusible, cellular, coberent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous, and gray, and has a submettalic luster. Any similar substance left as a residue when petroleum, shale oil, etc., are distilled to dryness."Our attention has been invited by learned counsel for the State to the discussion in Encyclopaedi a Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in section 14(i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms that petroleum coke which is a from of coke cannot possibly be excluded merely by reference to the word "Coal." | 1[ds]6. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit of clause (i) of section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in para 2 that "coke is the refuse left after distillation of coal, shale or oil and is called petroleum coke, Metellurgical coke or pitch coke, to indicate its source or origin; but all these are carbonacious material used for the same purpose and having same properties, more or less, mainh andMoisture, "In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this a statement which does not appear to have been properly denied. All that has been stated in para 5 is that the word "coke" in clause 9(i) of sec. 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. I which is as followsinfusible, cellular, coberent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous, and gray, and has a submettalic luster. Any similar substance left as a residue when petroleum, shale oil, etc., are distilled toattention has been invited by learned counsel for the State to the discussion in Encyclopaedi a Britannica, Vol. 5 on coke, coking and high temperatureWe do not consider that when the Parliament used the word "coke" in section 14(i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms that petroleum coke which is a from of coke cannot possibly be excluded merely by reference to the word "Coal." | 1 | 1,462 | 466 | ### Instruction:
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1964. The company then moved the High Court under Art. 226 of the Constitution which was dismissed.3. In the writ petition as also the return held in reply there to and before the High Court the provisions of certain other enactments were mentioned. These were the Assam Finance Sales Tax Act, 1956 as amended from time to time and the Assam (Sales of Petroleum and Petroleum Products ................) Act 1956 as amended. It is unnecessary to refer to their relevant provision because before it is common ground that the tax would be payable under the Assam Act, the only question being about the rate. Under the Assam Act, the rate chargeable was 5 paise per rupee. But it has been claimed on behalf of the appellant that by virtue of the provisions of the Central Sales Tax Act 1956, hereinafter called the "Act", the rate at which the tax would be payable is 2 paise per rupee.4. Section 14 declares, interalia, that coal including coke in all its forms constitutes goods which are of special importance in inter-State trade or commerce. Section 15(1) of the Central Act as it stood at the relevant time was in the following terms :S. 15 "Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions namely :(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed (two per cent) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage.(b) ................"It may be mentioned that by Amending Act 13 of 1966, 3% was submitted for 2% with effect from July 1, 1966.5. It is not disputed that if petroleum coke is covered by clause (i) of sec. 14 which reads "coal including coke in all its forms" the State was not competent to levy tax at a rate exceeding the one given in sec. 15(a) of the Central Act. Before the High Court it was common ground that petroleum is used mainly in industries dealing with the manufacture of carbon products and it differs in material constituents, quality, utility and composition from the ordinary coke used as fuel. It is used largely in the manufacture of dry cells, carbon electrodes and electric furnace resistance element. Reference has also been made in the judgment to what is stated in "Chemical Engineers" Hand book, 3rd Edn., at page 1556 :-"Coke is a hard, dense infusible carbonisation residue that ranges from a dull gray-black to a silvery gray; the latter is characteristic of good quality high temperature coke. A coke of this type makes a ringing sound when dropped or struck with a hard object. It exhibits a porous cell cellular structure, which primarily depends upon the kind of coal used & the rate of heating during the carbonization process"The High Court was of the view that the word coal includes coke in all its forms in clause (i) of sec. 14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, of the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act.6. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit of clause (i) of section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in para 2 that "coke is the refuse left after distillation of coal, shale or oil and is called petroleum coke, Metellurgical coke or pitch coke, to indicate its source or origin; but all these are carbonacious material used for the same purpose and having same properties, more or less, main being.- Mixed Carbon, - Volatile Matters,- Ash and - Moisture, "In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this a statement which does not appear to have been properly denied. All that has been stated in para 5 is that the word "coke" in clause 9(i) of sec. 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. I which is as follows :-"The infusible, cellular, coberent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous, and gray, and has a submettalic luster. Any similar substance left as a residue when petroleum, shale oil, etc., are distilled to dryness."Our attention has been invited by learned counsel for the State to the discussion in Encyclopaedi a Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in section 14(i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms that petroleum coke which is a from of coke cannot possibly be excluded merely by reference to the word "Coal."
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6. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit of clause (i) of section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in para 2 that "coke is the refuse left after distillation of coal, shale or oil and is called petroleum coke, Metellurgical coke or pitch coke, to indicate its source or origin; but all these are carbonacious material used for the same purpose and having same properties, more or less, mainh andMoisture, "In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this a statement which does not appear to have been properly denied. All that has been stated in para 5 is that the word "coke" in clause 9(i) of sec. 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. I which is as followsinfusible, cellular, coberent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous, and gray, and has a submettalic luster. Any similar substance left as a residue when petroleum, shale oil, etc., are distilled toattention has been invited by learned counsel for the State to the discussion in Encyclopaedi a Britannica, Vol. 5 on coke, coking and high temperatureWe do not consider that when the Parliament used the word "coke" in section 14(i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms that petroleum coke which is a from of coke cannot possibly be excluded merely by reference to the word "Coal."
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A.P. State Financial Corporation Vs. Official Liquidator | portion therein, and, where a secured creditor, instead of relinquishing his security and proving his debt, opts to realise his security, -(a) the liquidator shall be entitled to represent the workmen and enforce such charge;(b) any amount realised by the liquidator by way of enforcement of such charge shall be applied rateably for the discharge of workmens dues; and(c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of this proviso or the amount of the workmens portion in his security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A529-A. (1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company -(a) workmens dues; and(b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such duesshall be paid in priority to all other debts." 5. The only contention of Mr. Y. Prabhakara Rao, learned counsel for the appellant was that the Act of 1951 being a special Act, power of the appellant Corporation to invoke provisions of Section 29 of the Act of 1951 is absolute and cannot be restricted 6. By inserting the proviso of Section 529 of the Companies Act by the amending Act of 1985 the legislature has provided that the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen to the extent of the workmens portion therein, and, where a secured creditor, instead of relinquishing the security and proving the debt, opts to realise security: (a) the liquidator shall be entitled to represent the workmen and enforce such charge;(b) any amount realised by the liquidator by way of enforcement of such charge; and(c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso or the amount of the workmens portion in the security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A. 7. Section 529-A which was also inserted by the amending Act of 1985 starts with the non obstante clause and provides that in winding up of a company, "workmens dues and debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues, shall be paid in priority with all other dues." 8. Now the question is whether Section 29 of the Act of 1951 can override the above provisions of the proviso to sub-section (1) of Section 529 and Section 529-A of the Companies Act. In other words whether the Corporation can exercise its rights under the above Section 29 ignoring a pari passu charge of the workmen. 9. The Act of 1951 is a special Act for grant of financial assistance to industrial concerns with a view to boost up industrialisation and also recovery of such financial assistance if it becomes bad and similarly the Companies Act deals with, companies including winding up of such companies. The proviso to sub-section (1) of Section 529 and Section 529-being a subsequent enactment, the non obstante clause in Section 529-A prevails over Section 29 of the Act of 1951 in view of the settled position of law. We are, therefore, of the opinion that the above proviso to sub-section (1) of Section 529 and Section 529-A will control Section 29 of the Act of 1951. In other words the statutory right to sell the property under Section 29 of the Act of 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529 of the Companies Act Under the proviso to sub-section (1) of Section 529, the liquidator shall be entitled to represent the workmen and force (sic enforce) the above pari passu charge. Therefore, the Company Court was fully justified in imposing the above conditions to enable the Official Liquidator to discharge his function properly under the supervision of the Company Court as the new Section 529-A of the Companies Act confers upon a Company Court the duty to ensure that the workmens dues are paid in priority to all other debts in accordance with the provisions of the above section. The legislature has amended the Companies Act in 1985 with a social purpose viz. to protect dues of the workmen. If conditions are not imposed to protect the right of the workmen there is every possibility that the secured creditor may frustrate the above pari passu right of the workmen. 10. In the impugned judgment the High Court expressed its views as follows "In our opinion, therefore, it was not at all necessary for the Financial Corporation to approach this Court for permission to stay outside the winding-up proceedings. In spite of the same, the Financial Corporation did venture to make such an application in view of the fact that pari passu charge was created on the assets of the Company for payment of arrears to the workmen of the Company. ...." In view of the above opinion of the High Court that it was not necessary for the Financial Corporation to approach the Court for permission to stay outside the winding-up proceedings, the learned counsel for the appellant has urged that High Court erred in imposing the above conditions. We are of the opinion that the above observation of the High Court was uncalled for as we have stated that power under Section 29 of the Act of 1951 can be exercised subject to the above provisions of the Companies Act. 11. For what has been stated above, we hold that imposition of the above conditions by the High Court was lawful. 12. | 0[ds]We are, therefore, of the opinion that the above proviso to(1) of Section 529 and Sectionwill control Section 29 of the Act of 1951. In other words the statutory right to sell the property under Section 29 of the Act of 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529of the CompaniesAct Under the proviso to(1) of Section 529, the liquidator shall be entitled to represent the workmen and force (sic enforce) the above pari passu charge. Therefore, the Company Court was fully justified in imposing the above conditions to enable the Official Liquidator to discharge his function properly under the supervision of the Company Court as the new Sectionof the CompaniesAct confers upon a Company Court the duty to ensure that the workmens dues are paid in priority to all other debts in accordance with the provisions of the above section. The legislature has amended the Companies Act in 1985 with a social purpose viz. to protect dues of the workmen. If conditions are not imposed to protect the right of the workmen there is every possibility that the secured creditor may frustrate the above pari passu right of thethe impugned judgment the High Court expressed its views asour opinion, therefore, it was not at all necessary for the Financial Corporation to approach this Court for permission to stay outside theproceedings. In spite of the same, the Financial Corporation did venture to make such an application in view of the fact that pari passu charge was created on the assets of the Company for payment of arrears to the workmen of the Company. ...."are of the opinion that the above observation of the High Court was uncalled for as we have stated that power under Section 29 of the Act of 1951 can be exercised subject to the above provisionsof the Companieswhat has been stated above, we hold that imposition of the above conditions by the High Court was lawful. | 0 | 1,730 | 364 | ### Instruction:
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portion therein, and, where a secured creditor, instead of relinquishing his security and proving his debt, opts to realise his security, -(a) the liquidator shall be entitled to represent the workmen and enforce such charge;(b) any amount realised by the liquidator by way of enforcement of such charge shall be applied rateably for the discharge of workmens dues; and(c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of this proviso or the amount of the workmens portion in his security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A529-A. (1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company -(a) workmens dues; and(b) debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such duesshall be paid in priority to all other debts." 5. The only contention of Mr. Y. Prabhakara Rao, learned counsel for the appellant was that the Act of 1951 being a special Act, power of the appellant Corporation to invoke provisions of Section 29 of the Act of 1951 is absolute and cannot be restricted 6. By inserting the proviso of Section 529 of the Companies Act by the amending Act of 1985 the legislature has provided that the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen to the extent of the workmens portion therein, and, where a secured creditor, instead of relinquishing the security and proving the debt, opts to realise security: (a) the liquidator shall be entitled to represent the workmen and enforce such charge;(b) any amount realised by the liquidator by way of enforcement of such charge; and(c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of the proviso or the amount of the workmens portion in the security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A. 7. Section 529-A which was also inserted by the amending Act of 1985 starts with the non obstante clause and provides that in winding up of a company, "workmens dues and debts due to secured creditors to the extent such debts rank under clause (c) of the proviso to sub-section (1) of Section 529 pari passu with such dues, shall be paid in priority with all other dues." 8. Now the question is whether Section 29 of the Act of 1951 can override the above provisions of the proviso to sub-section (1) of Section 529 and Section 529-A of the Companies Act. In other words whether the Corporation can exercise its rights under the above Section 29 ignoring a pari passu charge of the workmen. 9. The Act of 1951 is a special Act for grant of financial assistance to industrial concerns with a view to boost up industrialisation and also recovery of such financial assistance if it becomes bad and similarly the Companies Act deals with, companies including winding up of such companies. The proviso to sub-section (1) of Section 529 and Section 529-being a subsequent enactment, the non obstante clause in Section 529-A prevails over Section 29 of the Act of 1951 in view of the settled position of law. We are, therefore, of the opinion that the above proviso to sub-section (1) of Section 529 and Section 529-A will control Section 29 of the Act of 1951. In other words the statutory right to sell the property under Section 29 of the Act of 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529 of the Companies Act Under the proviso to sub-section (1) of Section 529, the liquidator shall be entitled to represent the workmen and force (sic enforce) the above pari passu charge. Therefore, the Company Court was fully justified in imposing the above conditions to enable the Official Liquidator to discharge his function properly under the supervision of the Company Court as the new Section 529-A of the Companies Act confers upon a Company Court the duty to ensure that the workmens dues are paid in priority to all other debts in accordance with the provisions of the above section. The legislature has amended the Companies Act in 1985 with a social purpose viz. to protect dues of the workmen. If conditions are not imposed to protect the right of the workmen there is every possibility that the secured creditor may frustrate the above pari passu right of the workmen. 10. In the impugned judgment the High Court expressed its views as follows "In our opinion, therefore, it was not at all necessary for the Financial Corporation to approach this Court for permission to stay outside the winding-up proceedings. In spite of the same, the Financial Corporation did venture to make such an application in view of the fact that pari passu charge was created on the assets of the Company for payment of arrears to the workmen of the Company. ...." In view of the above opinion of the High Court that it was not necessary for the Financial Corporation to approach the Court for permission to stay outside the winding-up proceedings, the learned counsel for the appellant has urged that High Court erred in imposing the above conditions. We are of the opinion that the above observation of the High Court was uncalled for as we have stated that power under Section 29 of the Act of 1951 can be exercised subject to the above provisions of the Companies Act. 11. For what has been stated above, we hold that imposition of the above conditions by the High Court was lawful. 12.
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We are, therefore, of the opinion that the above proviso to(1) of Section 529 and Sectionwill control Section 29 of the Act of 1951. In other words the statutory right to sell the property under Section 29 of the Act of 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529of the CompaniesAct Under the proviso to(1) of Section 529, the liquidator shall be entitled to represent the workmen and force (sic enforce) the above pari passu charge. Therefore, the Company Court was fully justified in imposing the above conditions to enable the Official Liquidator to discharge his function properly under the supervision of the Company Court as the new Sectionof the CompaniesAct confers upon a Company Court the duty to ensure that the workmens dues are paid in priority to all other debts in accordance with the provisions of the above section. The legislature has amended the Companies Act in 1985 with a social purpose viz. to protect dues of the workmen. If conditions are not imposed to protect the right of the workmen there is every possibility that the secured creditor may frustrate the above pari passu right of thethe impugned judgment the High Court expressed its views asour opinion, therefore, it was not at all necessary for the Financial Corporation to approach this Court for permission to stay outside theproceedings. In spite of the same, the Financial Corporation did venture to make such an application in view of the fact that pari passu charge was created on the assets of the Company for payment of arrears to the workmen of the Company. ...."are of the opinion that the above observation of the High Court was uncalled for as we have stated that power under Section 29 of the Act of 1951 can be exercised subject to the above provisionsof the Companieswhat has been stated above, we hold that imposition of the above conditions by the High Court was lawful.
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Commissioner Of Income Tax, Patiala Vs. Piara Singh | the business of smuggling gold he was entitled to a deduction under s. 10(1) of the Indian I.T. Act of the entire sum of Rs. 65, 500 as a loss incurred in the business on the confiscation of the currency notes. The Tribunal upheld the claim for deduction. It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India. At the instance of the revenue, a reference was made to the High Court of Punjab and Haryana on the following question :"Whether, on the facts and in the circumstances of the case, the loss of Rs. 65, 500 arising from the confiscation of the currency notes was an allowable deduction under section 10(1) of the Indian Income-tax Act 1922 ?" The High Court answered the question in the affirmative. And now this appeal by the revenue. 4. In our judgment, the High Court is right. The I.T. authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore, liable to income-tax on the income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity, possible detection by the customs authorities constitutes a normal feature integrated into all that is implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same was as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this court in Badridas Daga v. CIT [1958] 34 ITR 10 , the deduction must be allowed. 5. In CIT v. S. C. Kothari [1971] 82 ITR 794 , this court held that for the purpose of s. 10(1) of the Indian I.T. Act, 1922, a loss incurred in carrying on an illegal business must be deducted before the true figure of profits brought to tax can be computed. Grover J., speaking for the court, observed (p. 802);"If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law. But, that does not take the profits out of the taxing statute. Similarly, the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subjected to tax as profits under section 10(1) of the Act of 1922. The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business." 6. Reliance was placed by the revenue on Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 (SC). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. None the less he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under s. 10(2)(xv) of the Indian I.T. Act, 1922, was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader. Reference was made by the revenue to Soni Hinduji Kushalji & Co. v. CIT [1973] 89 ITR 112 (AP) . The assessees claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar [1974] 94 ITR 616 (Bom) where on a difference of opinion between two learned judges of the Bombay High Court, a third learned judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed. Apparently, the true significance of the distinction between an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case. 7. W | 0[ds]In our judgment, the High Court is right. The I.T. authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore, liable to income-tax on the income from that businessThe currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity, possible detection by the customs authorities constitutes a normal feature integrated into all that is implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same was as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this court in Badridas Daga v. CIT [1958] 34 ITR 10 , the deduction must be allowedReliance was placed by the revenue on Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 . In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. None the less he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under s. 10(2)(xv) of the Indian I.T. Act, 1922, was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader.Reference was made by the revenue to Soni Hinduji Kushalji & Co. v. CIT [1973] 89 ITR 112 (AP) .The assessees claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar [1974] 94 ITR 616 (Bom) where on a difference of opinion between two learned judges of the Bombay High Court, a third learned judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed. Apparently, the true significance of the distinction between an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in thate hold that the assessee is entitled to the deduction of Rs. 65, 500 and accordingly we affirm the view taken by the High Court on the question of law referred to it. | 0 | 1,355 | 728 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the business of smuggling gold he was entitled to a deduction under s. 10(1) of the Indian I.T. Act of the entire sum of Rs. 65, 500 as a loss incurred in the business on the confiscation of the currency notes. The Tribunal upheld the claim for deduction. It proceeded on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India. At the instance of the revenue, a reference was made to the High Court of Punjab and Haryana on the following question :"Whether, on the facts and in the circumstances of the case, the loss of Rs. 65, 500 arising from the confiscation of the currency notes was an allowable deduction under section 10(1) of the Indian Income-tax Act 1922 ?" The High Court answered the question in the affirmative. And now this appeal by the revenue. 4. In our judgment, the High Court is right. The I.T. authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore, liable to income-tax on the income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity, possible detection by the customs authorities constitutes a normal feature integrated into all that is implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same was as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this court in Badridas Daga v. CIT [1958] 34 ITR 10 , the deduction must be allowed. 5. In CIT v. S. C. Kothari [1971] 82 ITR 794 , this court held that for the purpose of s. 10(1) of the Indian I.T. Act, 1922, a loss incurred in carrying on an illegal business must be deducted before the true figure of profits brought to tax can be computed. Grover J., speaking for the court, observed (p. 802);"If the business is illegal, neither the profits earned nor the losses incurred would be enforceable in law. But, that does not take the profits out of the taxing statute. Similarly, the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subjected to tax as profits under section 10(1) of the Act of 1922. The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business." 6. Reliance was placed by the revenue on Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 (SC). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. None the less he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under s. 10(2)(xv) of the Indian I.T. Act, 1922, was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader. Reference was made by the revenue to Soni Hinduji Kushalji & Co. v. CIT [1973] 89 ITR 112 (AP) . The assessees claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar [1974] 94 ITR 616 (Bom) where on a difference of opinion between two learned judges of the Bombay High Court, a third learned judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed. Apparently, the true significance of the distinction between an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case. 7. W
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### Explanation:
In our judgment, the High Court is right. The I.T. authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore, liable to income-tax on the income from that businessThe currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity, possible detection by the customs authorities constitutes a normal feature integrated into all that is implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same was as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this court in Badridas Daga v. CIT [1958] 34 ITR 10 , the deduction must be allowedReliance was placed by the revenue on Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350 . In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. None the less he imported dates from Iraq by steamer, and the consignments were confiscated by the customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under s. 10(2)(xv) of the Indian I.T. Act, 1922, was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held to fall on the assessee in some character other than that of a trader.Reference was made by the revenue to Soni Hinduji Kushalji & Co. v. CIT [1973] 89 ITR 112 (AP) .The assessees claim to the deduction of the value of gold confiscated by the customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar [1974] 94 ITR 616 (Bom) where on a difference of opinion between two learned judges of the Bombay High Court, a third learned judge agreed with the view that the value of gold confiscated by the customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or business man a deduction could not be allowed. Apparently, the true significance of the distinction between an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in thate hold that the assessee is entitled to the deduction of Rs. 65, 500 and accordingly we affirm the view taken by the High Court on the question of law referred to it.
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Chaube Jagdish Prasad And Another Vs. Ganga Prasad Chaturvedi | Ayyangar v. Hindu Religious Endowment Board, Madras, 76 Ind App 67 at p. 73:(AIR 1949 P C 156 at p. 158).Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.In Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 : (A I R 1949 P C 239) the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under S. 115. Sir John Beaumont said at p. 142 ( of Ind App):(at p. 242 of AIR): There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate Court- exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under subs. (a) or sub-s. (b) and sub-s. (c) can be ignored. The cases of Babu Ram v. Munnalal, 49 All 454 : (A I R 1927 All 358) and Hari Bhikaji v. Naro Vishvanath, ILR 9 Bom 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is, in view of the High Court). In the one case on a point of limitation and in the other on a question of resjudicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result, in the present case their Lordships are of the opinion that the High Court, on the view which it took that the loan was not a commercial loan had power to interfere in revision under sub-s. (b) of 5, 115. In Keshardeo Chamria v.Radha Kissen, 1953 S C R 136 : (A I R 1953 S C 23), both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (P C), and Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 : (A I R 1917 P C 71), were reviewed and it was held that S. 115, Civil P. C., applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But it on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under S. 115, Civil P. C., becomes operative. 20. The appellant also relied on Brij Raj Krishna v. S. K. Show and Bros., 1951 S C R 145 : (A I R 1951 S C 115), where this Court quoted with approval the observations of Lord Esher in 1888-21Q BD 313, (supra) and Colonial Bank of Australia v. Willan, (1874) 5 P C 417, 443, where Sir James Colville said : Accordingly the authorities..............,establish that an adjudication by a Judge having jurisdiction over the subject matter is, it no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential has been erroneously found. But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of S. 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115, Civil P. C. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise. 21. The only question to be decided in the instant case is as to whether the High Court had correctly interfered under S. 115, Civil P. C., with the order of the Civil Judge. As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation and if the Court wrongly decided that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell within the rule laid down by the Privy Council in 76 Ind App 131 : (A I R 1949 P-C 239), ( supra).The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946 and therefore fell within S. 3-A. | 0[ds]17. The High Court, in our view, approached the question quite correctly when it stated that the question for determination was whether the accommodation had been constructed before or after 30th June 1946, and that it was constructed before that date the suit was incompetent and it after, the suit would lie. The contention raised by the appellant in this Court was that the decision of the trial Court as to whether the accommodation was constructed before or after 1st July 1946, cannot be challenged in revision in the High Court and he relied on the following observation of Lord Esher M. R., in theWhen an inferior Court or tribunal or body, which has to exercise the power of deciding facts is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the Jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction on finding that a does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction they give them, whether there shall be any appeal from their decision, for there will be none. In the second of two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdictionThese observations which relate to inferior Courts or tribunals with limited jurisdiction show that there are two classes of cases dealing with the power of such a tribunal (1) where the legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exists or is shown to exist. The difference is that in the former case the tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists. In the present case the appellant asked for a determination of reasonable annual rent under S. 3-A on the ground that the accommodation was constructed after 30th June 1946, and the House Allotment Officer therefore had power to determine the reasonable annual rent18. In order to give jurisdiction to the civil Court there had to be in existence a reasonable annual rent as defined under S. 2(f) whether it fell within its first two clauses or was determined under S. 3-A. The reasonable annual rent could be varied at the instance of the landlord or the tenant on the ground of its inadequacy or excess but the landlord could not bring a suit to vary the agreed rent nor could the Court entertain such a suit although it was open to the tenant to do so and the Court could at his instance entertain such a suit. The proceedings before the civil Court are not by way of an appeal from any order under S. 3-A made by the District Magistrate19. Section 115, Civil P. C., empowers the High Court, in cases where no appeal lies, to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction; (c) that in exercising the jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.Per Sir John Beaumont in Venkatagiri Ayyangar v. Hindu Religious Endowment Board, Madras, 76 Ind App 67 at p. 73:(AIR 1949 P C 156 at p. 158).Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.In Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 : (A I R 1949 P C 239) the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under S. 115. Sir John Beaumont said at p. 142 ( of Ind App):(at p. 242 of AIR):There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate Court- exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under subs. (a) or sub-s. (b) and sub-s. (c) can be ignored. The cases of Babu Ram v. Munnalal, 49 All 454 : (A I R 1927 All 358) and Hari Bhikaji v. Naro Vishvanath, ILR 9 Bom 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is, in view of the High Court). In the one case on a point of limitation and in the other on a question of resjudicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result, in the present case their Lordships are of the opinion that the High Court, on the view which it took that the loan was not a commercial loan had power to interfere in revision under sub-s. (b) of 5, 115In Keshardeo Chamria v.Radha Kissen, 1953 S C R 136 : (A I R 1953 S C 23), both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (P C), and Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 : (A I R 1917 P C 71), were reviewed and it was held that S. 115, Civil P. C., applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But it on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under S. 115, Civil P. C., becomes operative20. The appellant also relied on Brij Raj Krishna v. S. K. Show and Bros., 1951 S C R 145 : (A I R 1951 S C 115), where this Court quoted with approval the observations of Lord Esher in 1888-21Q BD 313, (supra) andColonial Bank of Australia v. Willan, (1874) 5 P C 417, 443,where Sir James Colville said :Accordingly the authorities..............,establish that an adjudication by a Judge having jurisdiction over the subject matter is, it no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential has been erroneously foundBut these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of S. 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115, Civil P. C. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise | 0 | 5,038 | 1,747 | ### Instruction:
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Ayyangar v. Hindu Religious Endowment Board, Madras, 76 Ind App 67 at p. 73:(AIR 1949 P C 156 at p. 158).Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.In Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 : (A I R 1949 P C 239) the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under S. 115. Sir John Beaumont said at p. 142 ( of Ind App):(at p. 242 of AIR): There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate Court- exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under subs. (a) or sub-s. (b) and sub-s. (c) can be ignored. The cases of Babu Ram v. Munnalal, 49 All 454 : (A I R 1927 All 358) and Hari Bhikaji v. Naro Vishvanath, ILR 9 Bom 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is, in view of the High Court). In the one case on a point of limitation and in the other on a question of resjudicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result, in the present case their Lordships are of the opinion that the High Court, on the view which it took that the loan was not a commercial loan had power to interfere in revision under sub-s. (b) of 5, 115. In Keshardeo Chamria v.Radha Kissen, 1953 S C R 136 : (A I R 1953 S C 23), both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (P C), and Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 : (A I R 1917 P C 71), were reviewed and it was held that S. 115, Civil P. C., applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But it on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under S. 115, Civil P. C., becomes operative. 20. The appellant also relied on Brij Raj Krishna v. S. K. Show and Bros., 1951 S C R 145 : (A I R 1951 S C 115), where this Court quoted with approval the observations of Lord Esher in 1888-21Q BD 313, (supra) and Colonial Bank of Australia v. Willan, (1874) 5 P C 417, 443, where Sir James Colville said : Accordingly the authorities..............,establish that an adjudication by a Judge having jurisdiction over the subject matter is, it no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential has been erroneously found. But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of S. 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115, Civil P. C. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise. 21. The only question to be decided in the instant case is as to whether the High Court had correctly interfered under S. 115, Civil P. C., with the order of the Civil Judge. As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation and if the Court wrongly decided that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell within the rule laid down by the Privy Council in 76 Ind App 131 : (A I R 1949 P-C 239), ( supra).The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946 and therefore fell within S. 3-A.
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0
### Explanation:
3-A. The reasonable annual rent could be varied at the instance of the landlord or the tenant on the ground of its inadequacy or excess but the landlord could not bring a suit to vary the agreed rent nor could the Court entertain such a suit although it was open to the tenant to do so and the Court could at his instance entertain such a suit. The proceedings before the civil Court are not by way of an appeal from any order under S. 3-A made by the District Magistrate19. Section 115, Civil P. C., empowers the High Court, in cases where no appeal lies, to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction; (c) that in exercising the jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.Per Sir John Beaumont in Venkatagiri Ayyangar v. Hindu Religious Endowment Board, Madras, 76 Ind App 67 at p. 73:(AIR 1949 P C 156 at p. 158).Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.In Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 : (A I R 1949 P C 239) the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under S. 115. Sir John Beaumont said at p. 142 ( of Ind App):(at p. 242 of AIR):There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate Court- exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under subs. (a) or sub-s. (b) and sub-s. (c) can be ignored. The cases of Babu Ram v. Munnalal, 49 All 454 : (A I R 1927 All 358) and Hari Bhikaji v. Naro Vishvanath, ILR 9 Bom 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is, in view of the High Court). In the one case on a point of limitation and in the other on a question of resjudicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result, in the present case their Lordships are of the opinion that the High Court, on the view which it took that the loan was not a commercial loan had power to interfere in revision under sub-s. (b) of 5, 115In Keshardeo Chamria v.Radha Kissen, 1953 S C R 136 : (A I R 1953 S C 23), both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (P C), and Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 : (A I R 1917 P C 71), were reviewed and it was held that S. 115, Civil P. C., applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But it on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under S. 115, Civil P. C., becomes operative20. The appellant also relied on Brij Raj Krishna v. S. K. Show and Bros., 1951 S C R 145 : (A I R 1951 S C 115), where this Court quoted with approval the observations of Lord Esher in 1888-21Q BD 313, (supra) andColonial Bank of Australia v. Willan, (1874) 5 P C 417, 443,where Sir James Colville said :Accordingly the authorities..............,establish that an adjudication by a Judge having jurisdiction over the subject matter is, it no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queens Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential has been erroneously foundBut these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of S. 5 (4) of the Act. And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of S. 115, Civil P. C. If there is an error which falls within this section the High Court will have the power to interfere, not otherwise
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Kedar Prasad Vs. Jagdish Prasad and Ors | provides that an agricultural labour in possession of unoccupied land in a village as on 2nd October, 1984 would be granted such rights provided that he could not get rights for land exceeding two hectares; and that public land like burial ground, grazing land, skinning ground, bazaar land, etc. were exempted from this provisions. Sub-section (2) of Section 3 of the Adhiniyam makes it clear that the might can only be granted in the village in which the agricultural labourer resides. The Appellant herein filed an application before the competent authority, i.e., the Tehsildar praying that he is in possession of five bighas of land falling in Khasra No. 109/5 (kha) situated in Village Kheria Raiju, Tehsil Gohad, District Bhind, Madhya Pradesh, hereinafter referred to as the suit land and claimed bhoomiswami rights over the same. The Tehsildar vide order dated 2.3.1990 held that the Appellant is a landless labourer and granted him bhoomiswami rights over the suit land. 2. Respondent Nos. 1 and 2 filed an appeal before the SDO challenging the order of 2.3.1990. This appeal was dismissed on 13.10.1992. Thereafter, Respondent Nos. 1 and 2 filed revision petition before the Revenue Commissioner. When the revision petition was pending, Respondent Nos. 1 and 2 also filed a civil suit out of which the present proceedings arise in which they prayed for setting aside of the order dated 2.3.1990 granting bhoomiswami rights to the Appellant. They also claimed their title on the basis of adverse possession. 3. The Revenue Commissioner dismissed the revision petition on 17.3.1993 and upheld the bhoomiswami rights granted to the Appellant. 4. In the suit filed by Respondent Nos. 1 and 2, the Appellant filed counter claim claiming that he was in possession since more than 30 years. He claimed that his adverse possession had ripened to ownership. He also claimed bhoomiswami rights on basis of the order dated 2.3.1990. 5. The learned Trial Court dismissed the suit of the Plaintiffs and held that they had only proved the possession over the land only for 11 years from 1963 to 1973 and have failed to prove that they were in adverse possession. 6. As far as the case of the cross-objector (Appellant herein) is concerned, the Trial Court rejected the claim of adverse possession on merits and with regard to the order dated 2.3.1990 held that since the original order had not been placed on record, the Appellant would not claim title on the basis of the same. 7. Aggrieved by the judgment of the Trial Court, both sides filed appeals. The appeal filed by the Plaintiffs was dismissed, but the appeal filed by the cross-objector (Appellant herein) was allowed and it was held that he had bhoomiswami rights of the suit land pursuant to the order dated 2.3.1990. 8. It is pertinent to mention here that during the pendency of the appeal before the first Appellate Court, the Appellant had filed an application for leading additional evidence Under Order 41, Rule 27 of Code of Civil Procedure and had placed the order dated 2.3.1990 on record. 9. Aggrieved by the order of the lower Appellate Court, Respondent Nos. 1 and 2 filed second appeals before the High Court. The High Court has allowed these appeals basically on three grounds: (1) that the suit land is charnoi land (grazing land) and, therefore, was covered under the second proviso to Section 3 of the Adhiniyam and bhoomiswami rights over the same could not have been granted, (2) the High Court also observed that no opportunity had been given to the original Plaintiffs - Respondent Nos. 1 and 2 to rebut the evidence placed on record by the Appellant by way of additional evidence. (3) The High Court also held that Respondent Nos. 1 and 2 were at the most in possession of the suit land and, therefore, they could be evicted from the suit land by following the due procedure of law. 10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside. 11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld. 12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done. | 1[ds]10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside.11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld.12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done. | 1 | 1,184 | 381 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
provides that an agricultural labour in possession of unoccupied land in a village as on 2nd October, 1984 would be granted such rights provided that he could not get rights for land exceeding two hectares; and that public land like burial ground, grazing land, skinning ground, bazaar land, etc. were exempted from this provisions. Sub-section (2) of Section 3 of the Adhiniyam makes it clear that the might can only be granted in the village in which the agricultural labourer resides. The Appellant herein filed an application before the competent authority, i.e., the Tehsildar praying that he is in possession of five bighas of land falling in Khasra No. 109/5 (kha) situated in Village Kheria Raiju, Tehsil Gohad, District Bhind, Madhya Pradesh, hereinafter referred to as the suit land and claimed bhoomiswami rights over the same. The Tehsildar vide order dated 2.3.1990 held that the Appellant is a landless labourer and granted him bhoomiswami rights over the suit land. 2. Respondent Nos. 1 and 2 filed an appeal before the SDO challenging the order of 2.3.1990. This appeal was dismissed on 13.10.1992. Thereafter, Respondent Nos. 1 and 2 filed revision petition before the Revenue Commissioner. When the revision petition was pending, Respondent Nos. 1 and 2 also filed a civil suit out of which the present proceedings arise in which they prayed for setting aside of the order dated 2.3.1990 granting bhoomiswami rights to the Appellant. They also claimed their title on the basis of adverse possession. 3. The Revenue Commissioner dismissed the revision petition on 17.3.1993 and upheld the bhoomiswami rights granted to the Appellant. 4. In the suit filed by Respondent Nos. 1 and 2, the Appellant filed counter claim claiming that he was in possession since more than 30 years. He claimed that his adverse possession had ripened to ownership. He also claimed bhoomiswami rights on basis of the order dated 2.3.1990. 5. The learned Trial Court dismissed the suit of the Plaintiffs and held that they had only proved the possession over the land only for 11 years from 1963 to 1973 and have failed to prove that they were in adverse possession. 6. As far as the case of the cross-objector (Appellant herein) is concerned, the Trial Court rejected the claim of adverse possession on merits and with regard to the order dated 2.3.1990 held that since the original order had not been placed on record, the Appellant would not claim title on the basis of the same. 7. Aggrieved by the judgment of the Trial Court, both sides filed appeals. The appeal filed by the Plaintiffs was dismissed, but the appeal filed by the cross-objector (Appellant herein) was allowed and it was held that he had bhoomiswami rights of the suit land pursuant to the order dated 2.3.1990. 8. It is pertinent to mention here that during the pendency of the appeal before the first Appellate Court, the Appellant had filed an application for leading additional evidence Under Order 41, Rule 27 of Code of Civil Procedure and had placed the order dated 2.3.1990 on record. 9. Aggrieved by the order of the lower Appellate Court, Respondent Nos. 1 and 2 filed second appeals before the High Court. The High Court has allowed these appeals basically on three grounds: (1) that the suit land is charnoi land (grazing land) and, therefore, was covered under the second proviso to Section 3 of the Adhiniyam and bhoomiswami rights over the same could not have been granted, (2) the High Court also observed that no opportunity had been given to the original Plaintiffs - Respondent Nos. 1 and 2 to rebut the evidence placed on record by the Appellant by way of additional evidence. (3) The High Court also held that Respondent Nos. 1 and 2 were at the most in possession of the suit land and, therefore, they could be evicted from the suit land by following the due procedure of law. 10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside. 11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld. 12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done.
### Response:
1
### Explanation:
10. As far as the finding of possession is concerned, both the Trial Court and the first Appellate Court had found that the Plaintiffs were not in possession of the suit land. This was a pure finding of fact which could not have been set aside unless it is perverse or based on no evidence. The High Court without discussing any evidence has assumed that at best the Plaintiffs are in possession of the suit land. This presumption is not based on any material and, therefore, is liable to be set aside.11. The second ground taken by the High Court is that the land is grazing land. In the plaint filed by Respondent Nos. 1 and 2, there is not even a single averment alleging that the land in question is grazing land. The Plaintiffs themselves were claiming bhoomiswami rights over this land. It appears that at some stage this land was entered as service land and, therefore, the High Court assumed that it was charnoi land. The High Court did not take into consideration the fact that the character of the land had been changed to Kabil Kasht which means cultivable land in the year 1986. Therefore, this finding of the High Court also cannot be upheld.12. Lastly, the High Court has held that the Plaintiffs should have been given opportunity to rebut the additional evidence. We are afraid that this reasoning of the High Court is also erroneous. It is the Plaintiffs who had challenged the order dated 2.3.1990. It was their duty to place the order on record. If the order was not placed on record, adverse inference should have been drawn against the Plaintiffs. What can be the rebuttal to this document? It can only be the order of the higher authorities. Those two orders, i.e., the order of the SDO and the Revenue Commissioner have been placed on record. If there was any order of any higher authority, that should have been placed by Plaintiffs even during the course of these proceedings. This has not been done.
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New India Assurance Company Limited Vs. Kusumanchi Kameshwara Rao & Another | govern the rights and obligations of the parties flowing from the contract of guarantee and any oral or documentary evidence would not be admissible to vary the terms of this written document as seen earlier. The learned counsel for the appellant, however, vehemently submitted that to the suit notice given by the plaintiff to Defendant I no stand was taken by the appellant in its reply that it had not entered into any such agreement. Strictly speaking such notice correspondence would not be much relevant for deciding the moot question whether there was any contract of guarantee between the parties for covering the transaction in question when the document itself is available on record. However even if we turn to the plaintiffs advocates notice dated 27-3-1972 on which strong reliance was placed by the learned counsel for the plaintiff we find that all that was stated in that notice was to the effect that the a appellant had executed an agreement dated 23-4-1971 in favour of the plaintiff whereby they had undertook to pay to his client at Kakinada a sum of Rs. 1, 25, 000 (One lakh and twenty-five thousand rupees) or such less amount as may be demanded by his client on the failure of the dealer, Sri Satyanarayana and Company, Kakinada to perform all or any of the terms and conditions of the agreement dated 23-4-1971 entered into between his client and the said company. The reply of the insurance company dated 4-5-1972 advised the plaintiff to exhaust all means of recovery from Defendant 2 according to the agreement. However it is pertinent to note that even in the suit notice given by the plaintiff to Defendant 1 the emphasis is on the agreement of dealership by which Defendant 2 as a dealer was under an obligation to perform the terms and conditions of the agreement. Nowhere it is stated that Defendant 2 as retiring partner had undertaken liability under the Dissolution Deed to pay the amount falling due to the plaintiff from Defendant 2 when the firm was dissolved. As by Annexure A-1 the insurance company had already undertaken liability to pay the unpaid sale price of the goods sold by the plaintiff to Defendant 2 dealer it is obvious that in reply to the notice the appellant would rely upon the very same terms and conditions of the surety bond Annexure A 1. Therefore, it could not be said that the said reply to the notice implied any admission on the part of the appellant that it had given guarantee to pay up the dues of Defendant 2 on the basis of the Dissolution Deed Annexure A-2. The learned counsel for the respondent-plaintiff would have been on a firmer ground if the notice had recited that the insurance company had undertaken the liability to pay Rs. 1, 25, 000 which were payable on dissolution of partnership between the plaintiff and Defendant 2 and despite such recitals in the notice the insurance company had not objected. Besides such an attempt remain impermissible in law as express terms of the bond could not be varied by any oral or documentary evidence to the contrary. In any case as there was no allegation in the notice itself connecting it with the liability of Defendant 2 flowing from the Dissolution Deed Annexure A-2 there was no occasion for the appellant to deny its obligation as a surety qua such a liability. Similarly Annexure B-1, a guarantee bond executed by Defendant 2 in favour of Defendant 1 on which reliance was placed by the learned advocate for the plaintiff also is of no avail to enable the plaintiff to get out of the express terms of surety bond Annexure A-1. As discussed above it is found that the appellant-insurance company or its predecessor had not given any guarantee to cover the liability of Defendant 2 to the extent of Rs. 1, 25, 000 flowing from Dissolution Deed Annexure A-2. The guarantee given was for entirely a different transaction, that is for securing the payment of unpaid price of goods to be sold on credit by the plaintiff to dealer Defendant 2 over a course of period and the guarantee was to continue for such future period up to one year. It is not the case of the plaintiff that Defendant 2 had during that period failed to pay purchase price of the goods, namely, nylon yarn and fishing requisites. Nor has the plaintiff invoked suretyship agreement in that connection. The suit is based on entirely a different alleged guarantee said to have been given by the insurance company to cover the liability of Defendant 2 flowing from the Dissolution Deed. For such an obligation of a Defendant 2 flowing from Annexure A-2 there is no contract of guarantee at all given by Defendant 1. In short on the basis of the surety bond Annexure A-1 no liability can be foisted on the appellant to meet the obligation of Defendant 2 flowing from the Dissolution Deed Annexure A-2. As the saying goes mulo nasti kut shakha i.e., if there is no root where is the question of having branches. Consequently it is not possible to agree with the finding of the High Court as recorded at page 37 of the impugned judgment to the effect that the agreement mentioned in para 1 of Ex. A-1 has reference to Ex. A-2 agreement executed between the 2nd defendant and the plaintiff and that the parties understood the Dissolution Deed Ex. A-2 dated 23-4-1971 as being in the nature of sale of nylon yarn and fishing requisites in favour of Defendant 2 represented by G. Subbarao, the other partner. This finding flies in the face of theexpress terms of the guarantee bond Annexure A-1 and with respect amounts to rewriting the guarantee bond itself. Such a new guarantee bond cannot be culled out from the language of Annexure A-1. Such an exercise is totally impermissible on the facts and circumstances of the case. 9. | 1[ds]In any case as there was no allegation in the notice itself connecting it with the liability of Defendant 2 flowing from the Dissolution Deed Annexure A-2 there was no occasion for the appellant to deny its obligation as a surety qua such a liability. Similarly Annexure B-1, a guarantee bond executed by Defendant 2 in favour of Defendant 1 on which reliance was placed by the learned advocate for the plaintiff also is of no avail to enable the plaintiff to get out of the express terms of surety bond Annexure A-1. As discussed above it is found that the appellant-insurance company or its predecessor had not given any guarantee to cover the liability of Defendant 2 to the extent of Rs. 1, 25, 000 flowing from Dissolution Deed Annexure A-2. The guarantee given was for entirely a different transaction, that is for securing the payment of unpaid price of goods to be sold on credit by the plaintiff to dealer Defendant 2 over a course of period and the guarantee was to continue for such future period up to one year. It is not the case of the plaintiff that Defendant 2 had during that period failed to pay purchase price of the goods, namely, nylon yarn and fishing requisites. Nor has the plaintiff invoked suretyship agreement in that connection. The suit is based on entirely a different alleged guarantee said to have been given by the insurance company to cover the liability of Defendant 2 flowing from the Dissolution Deed. For such an obligation of a Defendant 2 flowing from Annexure A-2 there is no contract of guarantee at all given by Defendant 1. In short on the basis of the surety bond Annexure A-1 no liability can be foisted on the appellant to meet the obligation of Defendant 2 flowing from the Dissolution Deed Annexure A-2. As the saying goes mulo nasti kut shakha i.e., if there is no root where is the question of having branches. Consequently it is not possible to agree with the finding of the High Court as recorded at page 37 of the impugned judgment to the effect that the agreement mentioned in para 1 of Ex. A-1 has reference to Ex. A-2 agreement executed between the 2nd defendant and the plaintiff and that the parties understood the Dissolution Deed Ex. A-2 dated 23-4-1971 as being in the nature of sale of nylon yarn and fishing requisites in favour of Defendant 2 represented by G. Subbarao, the other partner. This finding flies in the face of theexpress terms of the guarantee bond Annexure A-1 and with respect amounts to rewriting the guarantee bond itself. Such a new guarantee bond cannot be culled out from the language of Annexure A-1. Such an exercise is totally impermissible on the facts and circumstances of the case | 1 | 5,648 | 502 | ### 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:
govern the rights and obligations of the parties flowing from the contract of guarantee and any oral or documentary evidence would not be admissible to vary the terms of this written document as seen earlier. The learned counsel for the appellant, however, vehemently submitted that to the suit notice given by the plaintiff to Defendant I no stand was taken by the appellant in its reply that it had not entered into any such agreement. Strictly speaking such notice correspondence would not be much relevant for deciding the moot question whether there was any contract of guarantee between the parties for covering the transaction in question when the document itself is available on record. However even if we turn to the plaintiffs advocates notice dated 27-3-1972 on which strong reliance was placed by the learned counsel for the plaintiff we find that all that was stated in that notice was to the effect that the a appellant had executed an agreement dated 23-4-1971 in favour of the plaintiff whereby they had undertook to pay to his client at Kakinada a sum of Rs. 1, 25, 000 (One lakh and twenty-five thousand rupees) or such less amount as may be demanded by his client on the failure of the dealer, Sri Satyanarayana and Company, Kakinada to perform all or any of the terms and conditions of the agreement dated 23-4-1971 entered into between his client and the said company. The reply of the insurance company dated 4-5-1972 advised the plaintiff to exhaust all means of recovery from Defendant 2 according to the agreement. However it is pertinent to note that even in the suit notice given by the plaintiff to Defendant 1 the emphasis is on the agreement of dealership by which Defendant 2 as a dealer was under an obligation to perform the terms and conditions of the agreement. Nowhere it is stated that Defendant 2 as retiring partner had undertaken liability under the Dissolution Deed to pay the amount falling due to the plaintiff from Defendant 2 when the firm was dissolved. As by Annexure A-1 the insurance company had already undertaken liability to pay the unpaid sale price of the goods sold by the plaintiff to Defendant 2 dealer it is obvious that in reply to the notice the appellant would rely upon the very same terms and conditions of the surety bond Annexure A 1. Therefore, it could not be said that the said reply to the notice implied any admission on the part of the appellant that it had given guarantee to pay up the dues of Defendant 2 on the basis of the Dissolution Deed Annexure A-2. The learned counsel for the respondent-plaintiff would have been on a firmer ground if the notice had recited that the insurance company had undertaken the liability to pay Rs. 1, 25, 000 which were payable on dissolution of partnership between the plaintiff and Defendant 2 and despite such recitals in the notice the insurance company had not objected. Besides such an attempt remain impermissible in law as express terms of the bond could not be varied by any oral or documentary evidence to the contrary. In any case as there was no allegation in the notice itself connecting it with the liability of Defendant 2 flowing from the Dissolution Deed Annexure A-2 there was no occasion for the appellant to deny its obligation as a surety qua such a liability. Similarly Annexure B-1, a guarantee bond executed by Defendant 2 in favour of Defendant 1 on which reliance was placed by the learned advocate for the plaintiff also is of no avail to enable the plaintiff to get out of the express terms of surety bond Annexure A-1. As discussed above it is found that the appellant-insurance company or its predecessor had not given any guarantee to cover the liability of Defendant 2 to the extent of Rs. 1, 25, 000 flowing from Dissolution Deed Annexure A-2. The guarantee given was for entirely a different transaction, that is for securing the payment of unpaid price of goods to be sold on credit by the plaintiff to dealer Defendant 2 over a course of period and the guarantee was to continue for such future period up to one year. It is not the case of the plaintiff that Defendant 2 had during that period failed to pay purchase price of the goods, namely, nylon yarn and fishing requisites. Nor has the plaintiff invoked suretyship agreement in that connection. The suit is based on entirely a different alleged guarantee said to have been given by the insurance company to cover the liability of Defendant 2 flowing from the Dissolution Deed. For such an obligation of a Defendant 2 flowing from Annexure A-2 there is no contract of guarantee at all given by Defendant 1. In short on the basis of the surety bond Annexure A-1 no liability can be foisted on the appellant to meet the obligation of Defendant 2 flowing from the Dissolution Deed Annexure A-2. As the saying goes mulo nasti kut shakha i.e., if there is no root where is the question of having branches. Consequently it is not possible to agree with the finding of the High Court as recorded at page 37 of the impugned judgment to the effect that the agreement mentioned in para 1 of Ex. A-1 has reference to Ex. A-2 agreement executed between the 2nd defendant and the plaintiff and that the parties understood the Dissolution Deed Ex. A-2 dated 23-4-1971 as being in the nature of sale of nylon yarn and fishing requisites in favour of Defendant 2 represented by G. Subbarao, the other partner. This finding flies in the face of theexpress terms of the guarantee bond Annexure A-1 and with respect amounts to rewriting the guarantee bond itself. Such a new guarantee bond cannot be culled out from the language of Annexure A-1. Such an exercise is totally impermissible on the facts and circumstances of the case. 9.
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### Explanation:
In any case as there was no allegation in the notice itself connecting it with the liability of Defendant 2 flowing from the Dissolution Deed Annexure A-2 there was no occasion for the appellant to deny its obligation as a surety qua such a liability. Similarly Annexure B-1, a guarantee bond executed by Defendant 2 in favour of Defendant 1 on which reliance was placed by the learned advocate for the plaintiff also is of no avail to enable the plaintiff to get out of the express terms of surety bond Annexure A-1. As discussed above it is found that the appellant-insurance company or its predecessor had not given any guarantee to cover the liability of Defendant 2 to the extent of Rs. 1, 25, 000 flowing from Dissolution Deed Annexure A-2. The guarantee given was for entirely a different transaction, that is for securing the payment of unpaid price of goods to be sold on credit by the plaintiff to dealer Defendant 2 over a course of period and the guarantee was to continue for such future period up to one year. It is not the case of the plaintiff that Defendant 2 had during that period failed to pay purchase price of the goods, namely, nylon yarn and fishing requisites. Nor has the plaintiff invoked suretyship agreement in that connection. The suit is based on entirely a different alleged guarantee said to have been given by the insurance company to cover the liability of Defendant 2 flowing from the Dissolution Deed. For such an obligation of a Defendant 2 flowing from Annexure A-2 there is no contract of guarantee at all given by Defendant 1. In short on the basis of the surety bond Annexure A-1 no liability can be foisted on the appellant to meet the obligation of Defendant 2 flowing from the Dissolution Deed Annexure A-2. As the saying goes mulo nasti kut shakha i.e., if there is no root where is the question of having branches. Consequently it is not possible to agree with the finding of the High Court as recorded at page 37 of the impugned judgment to the effect that the agreement mentioned in para 1 of Ex. A-1 has reference to Ex. A-2 agreement executed between the 2nd defendant and the plaintiff and that the parties understood the Dissolution Deed Ex. A-2 dated 23-4-1971 as being in the nature of sale of nylon yarn and fishing requisites in favour of Defendant 2 represented by G. Subbarao, the other partner. This finding flies in the face of theexpress terms of the guarantee bond Annexure A-1 and with respect amounts to rewriting the guarantee bond itself. Such a new guarantee bond cannot be culled out from the language of Annexure A-1. Such an exercise is totally impermissible on the facts and circumstances of the case
|
COMMISSIONER OF CENTRAL EXCISE, DELHI-III Vs. KAP CONES | approval, as we perceive, is in favour of the assesses as the mandate is that the Committee of Chief Commissioners would apply its mind before recommending to file an appeal, for frivolous and unnecessary appeals are not filed. In fact, the provision has been enacted to prevent filing of unwarranted and undeserving appeals. Simultaneously, it also engrafts a procedure by which there is assured transparency and objectivity against loss of revenue and an erroneous decision goes on unchallenged. In that event, it would affect the fundamental sanctity behind the apposite fiscal principle, which is an inseparable part of good governance. 24. There can be no scintilla of doubt that an order passed or decision taken Under Section 35-E by the Board/Committee of Chief Commissioners is the date of the order or decision. It is not a quasi-judicial order determining a dispute or rights of parties, for there is no adjudication. We have already referred to the proviso that has been added to Sub-section (3) to Section 35-E by Finance Act, 2014 wherein it is stipulated that the Board has the power to extend the time for passing an order Under Sub-sections (1) and (2) by a period of 30 days. We are disposed to think as it is evident that the legislature is aware of the fact that there can be delay in filing of the appeals in spite of the time limit and procedure prescribed in Section 35-E of the Act and, therefore, Section 35-B(4) has been made applicable to the Appellants preferred after necessary approval/sanction/direction Under Section 35-E of the Act. The reduction of the period has ensured equality and parity between the appeals, one preferred by the Assessee and the other preferred by the revenue. The only thing is that the appeal preferred by the revenue has to be after satisfaction of conditions mentioned in Section 35-E of the Act. It is difficult to conceive that after the amendment brought in by the Finance Act, 2008 that the legislative intent is to put the revenue or the State at a disadvantage. It is not the intention of the legislature to deny and prevent the revenue from preferring an appeal which is barred by limitation or the delay in preferring an appeal cannot be condoned even if sufficient cause is shown. If such an interpretation is placed after 2008 amendment, it would be counter productive and not in consonance with the legislative intent which is clear as Section 35-B(4) has been made applicable to appeals which are preferred after taking recourse to the mechanism provided Under Section 35-E. 25. As stated earlier, we must advert to the proviso inserted to Sub-section (3) to Section 35-E by the Finance Act, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order Under Sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to file an application seeking condonation of delay for the periods specified, which cannot exceed 30 days. The insertion of the said proviso by Finance Act, 2014 does not negate and is not contrary to the legislative mandate by Section 35-E as it existed prior to or after insertion of the said proviso. 26. Learned Counsel has commended us to the decision in Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791. In the said case, the Court was dealing with Section 35-H which relates to limitation for filing a reference to the High Court. In view of the specific language of the said provision which provided only for 180 days period or no further period for filing of a reference, it had been held that the period is not extendable but absolute and in that context it had been held Section 5 of the Limitation Act would not be applicable. Thus, the authority in the said case is distinguishable. Be it noted, the said situation having changed by inserting Sub-Section 3A in Section 35-H of the Central Excise Act w.e.f. 1.7.1999. 27. At this juncture, we think it appropriate to refer to the Full Bench decision of the tribunal in Monnet Ispat & Energy Ltd. (supra). In the said case, interpreting the provisions, the Full Bench of the tribunal has recorded the following conclusion: The Tribunal has ample power to condone the delay in filing the appeal including the one filed Under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal Under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order Under Sub-section (1) or Sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers Under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed Under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal. 28. In our considered opinion, the analysis made by the Full Bench is correct in view of the opinion expressed by us in the preceding paragraph and accordingly we hold the said view to the correct. We are obliged to note with profit that the members deciding the lis by the impugned order should have kept themselves abreast to the Full Bench decision of the tribunal so that there would not have been two views as regards the same proposition. | 1[ds]9. It is necessary to state at the beginning that there is no cavil over the factual scenario. Therefore, we are only required to scrutinise in the statutory backdrop and regard being had to the amendments from time to time and the proposition stated in the authority in M.M. Rubber (supra) whether tribunal has jurisdiction to condone the delay in such a circumstance. We need not have to address the extent of delay and sufficiency of the cause stated in the application for condonation of delay, for the centripetal issue that has arisen for consideration in singularityis whether the tribunal has the jurisdiction or authority to condone the delay.18. It is apt to note here that the controversy in the instant case is governed by the 2008 amendments. We have referred to 2014 amendment, as by the said amendment it has been stipulated that the Board has power to extend the time for passing an order Under Sub-sections (1) and (2) by a period of 30 days. We shall overt to the impact of the same at a later stage.19. At this juncture, it is necessary to state that the Appellate Tribunal has been conferred power Under Sub-Section 5 to admit an appeal after the expiry of the period referred to in Sub-Section 3 of the said Section. The tribunal, as has been stated earlier, has ruled that it has no jurisdiction as the competent authority had not passed the order within the period of three months and there was delay of eight days on its part. For the aforesaid view, it has relied upon the decision in M.M. Rubber (supra). The question that arose for consideration therein was what was the relevant date for the purpose of calculation of the period of one year provided Under Section 35E(1)? In the said case, it was contended before the tribunal by the Assessee that the relevant date of the Collectors (adjudicating authority) order for the purposes of Section 35E(3) should be taken as November 28, 1984, the date when the order was passed and not December 21, 1984 when it was received by the Department and on that basis the order of the Board Under Section 35E(1) of the Act should be held as beyond the period of one year from the date of decision or order of the adjudicating authority and, therefore, the application before the tribunal Under Section 35E(4) of the Act was incompetent. The tribunal accepted the said contention and held that application was not maintainable.20. Before this Court, it was contended by the revenue that mere writing an order in file kept in the office is no order in the eyes of law and, therefore, limitation would start only from the date of receipt of the order by the revenue. A submission was also canvassed that departmental authorities and the private Respondents are to be treated equally as aggrieved persons for the purposes of calculating the time for making the direction Under Section 35E(3) of the Act. The Court scanned the anatomy of Section 35 especially Section 35E and proceeded to interpret the words from the date of decision or order. In that context, the Court referred to number of authorities and proceeded to state thus:12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set aside.After so stating, the Court proceeded to hold thus:18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the government is bound by the proceedings of its officers but persons affected are not concluded by the decision.21. After so stating, the three-Judge Bench opined that Section 35-E comes under the latter category of an authority exercising its own powers under the Act. It is not correct to equate the Board, as contended by the revenue, to one of the two parties to a quasi-judicial proceeding. The Court further held that the power Under Section 35-E is a power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly and, therefore, it is not correct to equate the Board to one of the two parties to a quasi-judicial proceeding before the Collector and the Boards right Under Section 35-E to the exercise of the right of appeal by an aggrieved Assessee from an order passed to its prejudice, and, therefore, when a time limit is provided for exercise of such a power, that should be exercised within specified period from the date of the order sought to be reconsidered. After so observing, the Court proceeded to state thus:...To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act for the following reason. There appears to be no provision in the Act requiring the endorsement, by a Collector, of all orders passed by him to the Board. If there is such a practice in fact or requirement in law, the period of one year from the date of the order is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an Assessee has within which to exercise his right of appeal. If, on the other hand, there is no such requirement or practice and the period within which the Board can interfere is left to depend on the off-chance of the Board coming to know of the existence of a particular order at some point of time, however distant, only administrative chaos can result. We are, therefore, of the opinion that the period of one year fixed Under Sub-section (3) of Section 35-E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective.23. Thus, as per the scheme of the Act, Sub-section (4) of Section 35-B(5) of the Act authorises the appellate tribunal to admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period if the tribunal is satisfied there was sufficient cause for not presenting the appeal within that period. As stated earlier, the power Under Sub-section (4) of Section 35-B has been made applicable to appeals preferred following the administrative procedure prescribed Under Section 35-E of the Act. The statutory position as it existed in 1984, as we find, has undergone a change by the amendment made under the Finance Act, 2008. Under the changed circumstances, it would not be appropriate to restrict and bar an application of the provisions of Sub-section (4) of Section 35-E to the period after passing of an order Under Sub-sections (1) and (2) of Section 35-E of the Act. We are inclined to think so as the amendment made by the Finance Act, 2008, the legislature, in effect, has equated the period of limitation prescribed Under Sub-section (3) of Section 35-E with the period prescribed for the Committee of the Chief Commissions Under Section 35-E of the Act. Earlier, that is, before the Finance Act, 2005, the legislature had prescribed and given a longer period of limitation to the Board or the Committee of the Chief Commissioners which could be two years or one year. The said extended period or concession granted to the Board or the Committee of Chief Commissioners was withdrawn by the Finance Act, 2008. The only concession available to the revenue is the additional period of one month. The postulates regarding approval, as we perceive, is in favour of the assesses as the mandate is that the Committee of Chief Commissioners would apply its mind before recommending to file an appeal, for frivolous and unnecessary appeals are not filed. In fact, the provision has been enacted to prevent filing of unwarranted and undeserving appeals. Simultaneously, it also engrafts a procedure by which there is assured transparency and objectivity against loss of revenue and an erroneous decision goes on unchallenged. In that event, it would affect the fundamental sanctity behind the apposite fiscal principle, which is an inseparable part of good governance.24. There can be no scintilla of doubt that an order passed or decision taken Under Section 35-E by the Board/Committee of Chief Commissioners is the date of the order or decision. It is not a quasi-judicial order determining a dispute or rights of parties, for there is no adjudication. We have already referred to the proviso that has been added to Sub-section (3) to Section 35-E by Finance Act, 2014 wherein it is stipulated that the Board has the power to extend the time for passing an order Under Sub-sections (1) and (2) by a period of 30 days. We are disposed to think as it is evident that the legislature is aware of the fact that there can be delay in filing of the appeals in spite of the time limit and procedure prescribed in Section 35-E of the Act and, therefore, Section 35-B(4) has been made applicable to the Appellants preferred after necessary approval/sanction/direction Under Section 35-E of the Act. The reduction of the period has ensured equality and parity between the appeals, one preferred by the Assessee and the other preferred by the revenue. The only thing is that the appeal preferred by the revenue has to be after satisfaction of conditions mentioned in Section 35-E of the Act. It is difficult to conceive that after the amendment brought in by the Finance Act, 2008 that the legislative intent is to put the revenue or the State at a disadvantage. It is not the intention of the legislature to deny and prevent the revenue from preferring an appeal which is barred by limitation or the delay in preferring an appeal cannot be condoned even if sufficient cause is shown. If such an interpretation is placed after 2008 amendment, it would be counter productive and not in consonance with the legislative intent which is clear as Section 35-B(4) has been made applicable to appeals which are preferred after taking recourse to the mechanism provided Under Section 35-E.25. As stated earlier, we must advert to the proviso inserted to Sub-section (3) to Section 35-E by the Finance Act, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order Under Sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to file an application seeking condonation of delay for the periods specified, which cannot exceed 30 days. The insertion of the said proviso by Finance Act, 2014 does not negate and is not contrary to the legislative mandate by Section 35-E as it existed prior to or after insertion of the said proviso.26. Learned Counsel has commended us to the decision in Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791.In the said case, the Court was dealing with Section 35-H which relates to limitation for filing a reference to the High Court. In view of the specific language of the said provision which provided only for 180 days period or no further period for filing of a reference, it had been held that the period is not extendable but absolute and in that context it had been held Section 5 of the Limitation Act would not be applicable. Thus, the authority in the said case is distinguishable. Be it noted, the said situation having changed by inserting Sub-Section 3A in Section 35-H of the Central Excise Act w.e.f. 1.7.1999.27. At this juncture, we think it appropriate to refer to the Full Bench decision of the tribunal in Monnet Ispat & Energy Ltd. (supra). In the said case, interpreting the provisions, the Full Bench of the tribunal has recorded the following conclusion:The Tribunal has ample power to condone the delay in filing the appeal including the one filed Under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal Under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order Under Sub-section (1) or Sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers Under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed Under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal.28. In our considered opinion, the analysis made by the Full Bench is correct in view of the opinion expressed by us in the preceding paragraph and accordingly we hold the said view to the correct. We are obliged to note with profit that the members deciding the lis by the impugned order should have kept themselves abreast to the Full Bench decision of the tribunal so that there would not have been two views as regards the same proposition. | 1 | 6,721 | 2,938 | ### 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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approval, as we perceive, is in favour of the assesses as the mandate is that the Committee of Chief Commissioners would apply its mind before recommending to file an appeal, for frivolous and unnecessary appeals are not filed. In fact, the provision has been enacted to prevent filing of unwarranted and undeserving appeals. Simultaneously, it also engrafts a procedure by which there is assured transparency and objectivity against loss of revenue and an erroneous decision goes on unchallenged. In that event, it would affect the fundamental sanctity behind the apposite fiscal principle, which is an inseparable part of good governance. 24. There can be no scintilla of doubt that an order passed or decision taken Under Section 35-E by the Board/Committee of Chief Commissioners is the date of the order or decision. It is not a quasi-judicial order determining a dispute or rights of parties, for there is no adjudication. We have already referred to the proviso that has been added to Sub-section (3) to Section 35-E by Finance Act, 2014 wherein it is stipulated that the Board has the power to extend the time for passing an order Under Sub-sections (1) and (2) by a period of 30 days. We are disposed to think as it is evident that the legislature is aware of the fact that there can be delay in filing of the appeals in spite of the time limit and procedure prescribed in Section 35-E of the Act and, therefore, Section 35-B(4) has been made applicable to the Appellants preferred after necessary approval/sanction/direction Under Section 35-E of the Act. The reduction of the period has ensured equality and parity between the appeals, one preferred by the Assessee and the other preferred by the revenue. The only thing is that the appeal preferred by the revenue has to be after satisfaction of conditions mentioned in Section 35-E of the Act. It is difficult to conceive that after the amendment brought in by the Finance Act, 2008 that the legislative intent is to put the revenue or the State at a disadvantage. It is not the intention of the legislature to deny and prevent the revenue from preferring an appeal which is barred by limitation or the delay in preferring an appeal cannot be condoned even if sufficient cause is shown. If such an interpretation is placed after 2008 amendment, it would be counter productive and not in consonance with the legislative intent which is clear as Section 35-B(4) has been made applicable to appeals which are preferred after taking recourse to the mechanism provided Under Section 35-E. 25. As stated earlier, we must advert to the proviso inserted to Sub-section (3) to Section 35-E by the Finance Act, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order Under Sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to file an application seeking condonation of delay for the periods specified, which cannot exceed 30 days. The insertion of the said proviso by Finance Act, 2014 does not negate and is not contrary to the legislative mandate by Section 35-E as it existed prior to or after insertion of the said proviso. 26. Learned Counsel has commended us to the decision in Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791. In the said case, the Court was dealing with Section 35-H which relates to limitation for filing a reference to the High Court. In view of the specific language of the said provision which provided only for 180 days period or no further period for filing of a reference, it had been held that the period is not extendable but absolute and in that context it had been held Section 5 of the Limitation Act would not be applicable. Thus, the authority in the said case is distinguishable. Be it noted, the said situation having changed by inserting Sub-Section 3A in Section 35-H of the Central Excise Act w.e.f. 1.7.1999. 27. At this juncture, we think it appropriate to refer to the Full Bench decision of the tribunal in Monnet Ispat & Energy Ltd. (supra). In the said case, interpreting the provisions, the Full Bench of the tribunal has recorded the following conclusion: The Tribunal has ample power to condone the delay in filing the appeal including the one filed Under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal Under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order Under Sub-section (1) or Sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers Under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed Under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal. 28. In our considered opinion, the analysis made by the Full Bench is correct in view of the opinion expressed by us in the preceding paragraph and accordingly we hold the said view to the correct. We are obliged to note with profit that the members deciding the lis by the impugned order should have kept themselves abreast to the Full Bench decision of the tribunal so that there would not have been two views as regards the same proposition.
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period of one month. The postulates regarding approval, as we perceive, is in favour of the assesses as the mandate is that the Committee of Chief Commissioners would apply its mind before recommending to file an appeal, for frivolous and unnecessary appeals are not filed. In fact, the provision has been enacted to prevent filing of unwarranted and undeserving appeals. Simultaneously, it also engrafts a procedure by which there is assured transparency and objectivity against loss of revenue and an erroneous decision goes on unchallenged. In that event, it would affect the fundamental sanctity behind the apposite fiscal principle, which is an inseparable part of good governance.24. There can be no scintilla of doubt that an order passed or decision taken Under Section 35-E by the Board/Committee of Chief Commissioners is the date of the order or decision. It is not a quasi-judicial order determining a dispute or rights of parties, for there is no adjudication. We have already referred to the proviso that has been added to Sub-section (3) to Section 35-E by Finance Act, 2014 wherein it is stipulated that the Board has the power to extend the time for passing an order Under Sub-sections (1) and (2) by a period of 30 days. We are disposed to think as it is evident that the legislature is aware of the fact that there can be delay in filing of the appeals in spite of the time limit and procedure prescribed in Section 35-E of the Act and, therefore, Section 35-B(4) has been made applicable to the Appellants preferred after necessary approval/sanction/direction Under Section 35-E of the Act. The reduction of the period has ensured equality and parity between the appeals, one preferred by the Assessee and the other preferred by the revenue. The only thing is that the appeal preferred by the revenue has to be after satisfaction of conditions mentioned in Section 35-E of the Act. It is difficult to conceive that after the amendment brought in by the Finance Act, 2008 that the legislative intent is to put the revenue or the State at a disadvantage. It is not the intention of the legislature to deny and prevent the revenue from preferring an appeal which is barred by limitation or the delay in preferring an appeal cannot be condoned even if sufficient cause is shown. If such an interpretation is placed after 2008 amendment, it would be counter productive and not in consonance with the legislative intent which is clear as Section 35-B(4) has been made applicable to appeals which are preferred after taking recourse to the mechanism provided Under Section 35-E.25. As stated earlier, we must advert to the proviso inserted to Sub-section (3) to Section 35-E by the Finance Act, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order Under Sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to file an application seeking condonation of delay for the periods specified, which cannot exceed 30 days. The insertion of the said proviso by Finance Act, 2014 does not negate and is not contrary to the legislative mandate by Section 35-E as it existed prior to or after insertion of the said proviso.26. Learned Counsel has commended us to the decision in Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791.In the said case, the Court was dealing with Section 35-H which relates to limitation for filing a reference to the High Court. In view of the specific language of the said provision which provided only for 180 days period or no further period for filing of a reference, it had been held that the period is not extendable but absolute and in that context it had been held Section 5 of the Limitation Act would not be applicable. Thus, the authority in the said case is distinguishable. Be it noted, the said situation having changed by inserting Sub-Section 3A in Section 35-H of the Central Excise Act w.e.f. 1.7.1999.27. At this juncture, we think it appropriate to refer to the Full Bench decision of the tribunal in Monnet Ispat & Energy Ltd. (supra). In the said case, interpreting the provisions, the Full Bench of the tribunal has recorded the following conclusion:The Tribunal has ample power to condone the delay in filing the appeal including the one filed Under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal Under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order Under Sub-section (1) or Sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers Under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed Under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal.28. In our considered opinion, the analysis made by the Full Bench is correct in view of the opinion expressed by us in the preceding paragraph and accordingly we hold the said view to the correct. We are obliged to note with profit that the members deciding the lis by the impugned order should have kept themselves abreast to the Full Bench decision of the tribunal so that there would not have been two views as regards the same proposition.
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GLOBE GROUND INDIA EMPLOYEES UNION Vs. LUFTHANSA GERMAN AIRLINES | Court has considered powers of the Tribunal to add necessary and proper parties. In the said judgment this Court has held that if the employer named in reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer can be joined. But at the same time in the very said judgment it is held that, the test always must be is the addition of the party necessary to make adjudication itself effective and enforceable? 13. In another judgment relied upon by the learned senior counsel for the appellant in the case of Hussainbhai vs. Alath Factory Thezhilali Union and others (supra), this Court has prescribed the test for determining, workmen employed by independent contractor to work in employers factory, whether such workmen are workmen of the factory or not. In this judgment, this Court has held that the presence of intermediate contractors with whom alone workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment. 14. Similarly, in another judgment relied upon by the learned senior counsel for the appellant in the case of Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), this Court has held that for the proceedings arising out of the Industrial Disputes Act, 1947, the provisions of the Evidence Act, in their strict sense, likewise do not apply to the proceedings. It is held that the authorities to whom reference is made under the Industrial Disputes Act, 1947, being quasi-judicial in nature, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice. 15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of reference is limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only. 16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seek employment of the alleged retrenched workers in the first respondent. 17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case. 18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts. 19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent. | 0[ds]From a reading of the reference, which is referred to Industrial Tribunal, it is clear that the reference which is required to be answered by the Industrial Tribunal is that, whether the action of the Management of M/s Globe Ground India (Pvt.) Limited, in closing down their establishment on 15.12.2009 and retrenching the services of 106 workmen is justified and legal. At this stage, it is apt to refer to Section 10 of the Industrial Disputes Act. It is clear from the above said section, whenever, the appropriate Government refers the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points only and matters incidential thereto11. Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party whois not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions necessary or proper parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of referenceis limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seekemployment of the alleged retrenched workers in the first respondent17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent. | 0 | 3,294 | 1,076 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Court has considered powers of the Tribunal to add necessary and proper parties. In the said judgment this Court has held that if the employer named in reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer can be joined. But at the same time in the very said judgment it is held that, the test always must be is the addition of the party necessary to make adjudication itself effective and enforceable? 13. In another judgment relied upon by the learned senior counsel for the appellant in the case of Hussainbhai vs. Alath Factory Thezhilali Union and others (supra), this Court has prescribed the test for determining, workmen employed by independent contractor to work in employers factory, whether such workmen are workmen of the factory or not. In this judgment, this Court has held that the presence of intermediate contractors with whom alone workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment. 14. Similarly, in another judgment relied upon by the learned senior counsel for the appellant in the case of Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), this Court has held that for the proceedings arising out of the Industrial Disputes Act, 1947, the provisions of the Evidence Act, in their strict sense, likewise do not apply to the proceedings. It is held that the authorities to whom reference is made under the Industrial Disputes Act, 1947, being quasi-judicial in nature, have to exercise their discretion in a judicial manner, without caprice, and according to the general principles of law and rules of natural justice. 15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of reference is limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only. 16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seek employment of the alleged retrenched workers in the first respondent. 17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case. 18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts. 19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent.
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From a reading of the reference, which is referred to Industrial Tribunal, it is clear that the reference which is required to be answered by the Industrial Tribunal is that, whether the action of the Management of M/s Globe Ground India (Pvt.) Limited, in closing down their establishment on 15.12.2009 and retrenching the services of 106 workmen is justified and legal. At this stage, it is apt to refer to Section 10 of the Industrial Disputes Act. It is clear from the above said section, whenever, the appropriate Government refers the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points only and matters incidential thereto11. Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party whois not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions necessary or proper parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings15. There cannot be any second opinion on the ratio decided in the aforesaid cases relied on by the learned senior counsel for the appellant. But, whenever an application is filed for impleadment of a third party, who is not a party to the reference under the Industrial Disputes Act or any other proceedings pending before the Court, what is required to be considered is whether such party is either necessary or proper party to decide the lis. It all depends on the facts of each case; the allegations made and the nature of adjudication proceedings etc. In this case it is to be noted that only the scope of referenceis limited which is already discussed above. However, it is also clear from Section 10(4) of the Industrial Disputes Act, 1947 that whenever a reference is made, the Industrial Court shall confine its adjudication to the point of reference and matters incidental thereto only16. Reverting back to the facts of the case on hand it is clear that the first respondent had a subsidiary, namely, Globe Ground Deutschland GmbH, which was holding 51% shares along with 49% shares held by the Bird Group in the second respondent company. Further, it is clear that the Bird Group had floated another company, Bird Worldwide Flight Services Ltd. to provide ground handling and ancillary services which started from the month of January, 2009. It is the allegation of the appellants union that even after the formation of a new company, such new company is utilizing same equipment and vehicles belonging to the second respondent. It is also the allegation of the appellant that after the formation of the new company, it has retained most of the employees, except the trade union activists. The appellant workers union does not seekemployment of the alleged retrenched workers in the first respondent17. Having regard to facts and circumstances of present case, we are of the opinion that the case law relied on by the learned senior counsel for the appellant would not render any assistance in support of the appellants case18. At the same time in the judgment in the case of Balwant Rai Saluja and another vs. AIR India Limited and others (supra) relied upon by Sri Chander Uday Singh, learned senior counsel for the respondents, this Court has observed that the corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, only if it is shown that the corporal form is misused to accomplish certain wrongful purposes. In the aforesaid case, having regard to facts, it was opined that the doctrine of piercing veil cannot be applied. In the aforesaid case it is held by this Court that the doctrine of piercing veil, has been applied sparingly by the courts19. The other judgment relied on by the learned senior counsel for the respondents in the case of Kasturi vs. Iyyamperumal and others (supra), this Court again considered the test to be applied while considering the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908. It is held that to consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence. Applying the aforesaid ratio laid down in the judgment, referred in the aforesaid cases, we are of the view that the said judgment relied on supports the case of the respondents. Further, we are of the view that even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se. In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent.
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RANBIR SINGH Vs. EXECUTIVE ENG. P.W.D | the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We do notice, this judgment has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others v. Food Corporation of India and others (2015) 5 SCC 786. 5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is Raj Kumar (supra). We may refer only to paragraphs-9 and 10: 9.In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v.Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] . 10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35) 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellants service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellants service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy. | 1[ds]4. It is true that in the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We do notice, this judgment has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others v. Food Corporation of India and others (2015) 5 SCC 786. 5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is Raj Kumar (supra). We may refer only to paragraphs-9 and 10:9.In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v.Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] .10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35)33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellants service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellants service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy. | 1 | 1,619 | 1,166 | ### Instruction:
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the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We do notice, this judgment has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others v. Food Corporation of India and others (2015) 5 SCC 786. 5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is Raj Kumar (supra). We may refer only to paragraphs-9 and 10: 9.In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v.Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] . 10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35) 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellants service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellants service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy.
### Response:
1
### Explanation:
that in the Ajay Pal Singh (supra), the Bench of this Court, by judgment rendered in the year 2015, took the view that, when the termination is effected of service of a daily wager, there must be compliance of Section 25F. This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We do notice, this judgment has been reiterated in a subsequent judgment also in Durgapur Casual Workers Union and others v. Food Corporation of India and others (2015) 5 SCC 786. 5. However, we notice that there is another line of decisions, and the latest of the same, which is brought to our notice by Shri Samar Vijay Singh, learned AAG, is Raj Kumar (supra). We may refer only to paragraphs-9 and 10:9.In our opinion, the case at hand is covered by the two decisions of this Court rendered in BSNL v.Bhurumal [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] and Distt. Development Officer v. Satish Kantilal Amrelia [Distt. Development Officer v. Satish Kantilal Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S) 276] .10. It is apposite to reproduce what this Court has held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC 177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras 33-35)33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.6. In the light of the state of the law, which we take note of, we notice certain facts which are not in dispute. This is a case where it is found that, though the appellant had worked for 240 days, appellants service was terminated, violating the mandatory provisions of Section 25F of the Act. The authority involved in this case, apparently, is a public authority. At the same time, it is common case that the appellant was a daily wager and the appellant was not a permanent employee. It is relevant to note that, in the award answering Issue No.1, which was, whether the termination of the appellants service was justified and in order, and if not, what was the amount of back wages he was entitled to, it was found, inter alia, that the appellant could not adduce convincing evidence to establish retention of junior workers. There is no finding of unfair trade practice, as such. In such circumstances, we think that the principle, which is enunciated by this Court, in the decision, which is referred to in Raj Kumar (supra), which we have referred to, would be more appropriate to follow. In other words, we find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy.
|
SIKANDER JEHAN BEGUM AND ANOTHER Vs. (ANDHRA PRADESH STATE GOVERNMENT) | and it is a also true that generally the property of the deceased Jagirdar was granted to the person who was held by the Nizam to be the successor of the deceased Jagirdar. But that does not affect the true legal character of the Jagir. This position is borne out by the previous Firman issued by the Nizam in regard to the enquiry of the Atiyat estates. Circular No. 34 of 1341 F prescribed rules for conducting enquiries and passing decisions in cases of Inam. This circular was subsequently superseded and in its place Circular No. 10 of 1338 F was issued. The date of this latter circular is June 13, 1929. Several rules are prescribed in the form of sections for holding enquiries and passing decisions in Inam cases. It is not necessary to refer to the sections of this Circular in detail. It may be enough to state that three classes of officers are contemplated by the Circular for holding the enquiry. They are given powers to hold the enquiry. The enquiries are intended to be held generally in accordance with the procedure prescribed in the Civil Procedure Code. Appeals are provided against the decision of one officer to the officer higher in rank, but the ultimate position appears to be clear; when the Nizam-e-Atiyat expresses his opinion and submits it to the Honble the Revenue Member the Revenue Member thereupon expresses his own opinion, and on considering all the opinions expressed in the enquiry, "the Nizam is graciously pleased to issue his Firman and the Firman thus issued will be binding on the parties." Thus, it appears that though formal provisions were made in regard to the holding of the enquiry, the nature of the enquiry was essentially consultative and the Nizam was not bound by the decisions reached by the several officers authorised to hold the enquiry. The fact that the Nizam usually accepted the decision of the enquiry does not alter the legal position that the Nizam might well have refused to accept the opinion and might even have refused to make a grant of the estate to anyone among the several, claimants.Therefore, even under the Circulars issued by the Nizam for holding enquiries into the questions of succession to Jagirs, the position appears to be clear that jagirs were not heritable and on the death of the Jagirdar, on principle and in theory, it was always a case of resumption and regrant.20. If that be so, any person who claimed to be the successor of the deceased Jagirdar had no right to come to a Civil Court for establishing that claim. In fact, there is no claim to succession at all, the question of regrant being always in the absolute discretion of the Nizam. After the Rule of the Nizam came to an end, the only change that occurred was that on the death of the Jagirdar, the properly vested in the State and could be regranted to a successor in the discretion of the State. Therefore, in our opinion the argument that by denying the petitioners the right to establish a claim in the Civil Court, the impugned provision of S. 18 (2) offends against Art. 14 of the Constitution, cannot be sustained. The property in respect of which the claim is sought to be made is not like the property in the case of Ameerunnissa at all. In that case, the property was heritable and succession to it was governed by the rules of personal law. In the present case, there is no right to succession as such-whoever gets the estate as a result of the decision of the Chief Minister gets it by way of regrant made by the State. That is why we are satisfied that the challenge to the validity of S. 13(2) on the ground that it contravenes Art. 14 cannot be sustained.21.In view of the special character of the property in question, it is obvious that the petitioners cannot challenge the validity of S. 13(2) on the ground that it contravenes Art. 19(1)(f).22. There is one more point which needs to be considered and that relates to the non-Atiyat estate left by the deceased Nawab Kamal Yar Jung. It appears that the Firman by which the Nizam appointed the first commission of Enquiry refers to the estate of the deceased Nawab in general and is not apparently confined to his Atiyat estate. Simiarly, the order passed by the Nizam that the Government should take possession of the deceased Nawabs property appears to have been implemented in regard to both Atiyat and non-Atiyat estates left by the Nawab. The Chief Ministers order confirming the report of the special Tribunal subsequently appointed is likewise vague and may seem to cover both the Atiyat and non-Atiyat estates. The petitioners contend that whatever may be the position in regard to the Atiyat estate, the Chief Minister had no right to make an order in respect of non-Atiyat estate; indeed the Nizam himself could not have appointed an Enquiry Commission in respect of non-Atiyat estate and so the dispute in regard to the succession to the said estate must be left to be decided according to the personal law of the parties and it must be tried by the ordinary Civil Courts. The position is not disputed either by Mr. Viswanatha Sastri who appeared for the State or by Mr. Latifi who appeared for the respondents before us. Incidentally, we may add that it appears that litigation is pending in respect of this property between some the parties in Civil Suit No. 139 of 1355 F. Since it is common ground before us that the non-Atiyat estate is not covered by the order passed by the Chief Minister, all that we wish to do in the present Writ Petition is to make it clear that the said order does not relate to non-Atiyat estate and that questions of title in respect of it will have to be tried in the Civil Courts. | 0[ds]It is common ground that our decision in the Writ Petition will govern the decision in the Civil Appeal. Indeed, as we have already indicated, both the proceedings raise the same point of law.It will be noticed that the result of S. 13(2) is to validate the orders of the authorities therein specified which have been passed between September 18, 1948, and March 14, 1952. The first date refers to the commencement of the Police action and the latter to the commencement of the operation of the Act. The object of the Legislature clearly is to validate orders passed between the said two dates so that the questions determined by the relevant orders should not be reopened for enquiry either before the Atiyat Courts or before the Civil Courts. It is not disputed that between the commencement of the Police action and the passing of the Act events of historical importance took place in the State of Hyderabad and so treating that period as of unusual significance is not open to any criticism. Therefore, if the Legislature chose to deal with the orders passed during this period as constituting a class by themselves, that itself cannot be said to contravene Art. 14 of theposition in the present case is very much different. Section 13(2) does not validate the orders passed in the enquiry relating to the present case alone. It purports to validate orders passed between the two specified dates in respect of all the enquiries which were then pending. That is one important point of distinction. Besides, as we will point out later, the nature of the property in respect of which the petitioners make a claim is fundamentally different from that in the case of Ameerunuissa Begum. The property in the latter case was heritable property succession to which had to be determined under the principles of the personal law applicable to the parties, while in the present case, the succession to Atiyat property does not come as a matter of right to the heirs of the last holder. Therefore, in our opinion, the argument based ripen the decision of the case Ameerunnissa Begum can notwe do not think it is necessary to examine the merits of this argument, though we may add that, prima facie, classification made between cases decided and those not decided may not be irrational or unreasonable.It is true that on the death of a Jagirdar an enquiry was held about the succession to the said Jagir either by the Atiyat Courts or by a commission or Tribunal specially appointed in that behalf; and it is a also true that generally the property of the deceased Jagirdar was granted to the person who was held by the Nizam to be the successor of the deceased Jagirdar. But that does not affect the true legal character of the Jagir. This position is borne out by the previous Firman issued by the Nizam in regard to the enquiry of the Atiyat estates. Circular No. 34 of 1341 F prescribed rules for conducting enquiries and passing decisions in cases of Inam. This circular was subsequently superseded and in its place Circular No. 10 of 1338 F was issued. The date of this latter circular is June 13, 1929. Several rules are prescribed in the form of sections for holding enquiries and passing decisions in Inam cases. It is not necessary to refer to the sections of this Circular in detail. It may be enough to state that three classes of officers are contemplated by the Circular for holding the enquiry. They are given powers to hold the enquiry. The enquiries are intended to be held generally in accordance with the procedure prescribed in the Civil Procedure Code. Appeals are provided against the decision of one officer to the officer higher in rank, but the ultimate position appears to be clear; when the Nizam-e-Atiyat expresses his opinion and submits it to the Honble the Revenue Member the Revenue Member thereupon expresses his own opinion, and on considering all the opinions expressed in the enquiry, "the Nizam is graciously pleased to issue his Firman and the Firman thus issued will be binding on the parties." Thus, it appears that though formal provisions were made in regard to the holding of the enquiry, the nature of the enquiry was essentially consultative and the Nizam was not bound by the decisions reached by the several officers authorised to hold the enquiry. The fact that the Nizam usually accepted the decision of the enquiry does not alter the legal position that the Nizam might well have refused to accept the opinion and might even have refused to make a grant of the estate to anyone among the several, claimants.Therefore, even under the Circulars issued by the Nizam for holding enquiries into the questions of succession to Jagirs, the position appears to be clear that jagirs were not heritable and on the death of the Jagirdar, on principle and in theory, it was always a case of resumption andin our opinion the argument that by denying the petitioners the right to establish a claim in the Civil Court, the impugned provision of S. 18 (2) offends against Art. 14 of the Constitution, cannot be sustained. The property in respect of which the claim is sought to be made is not like the property in the case of Ameerunnissa at all. In that case, the property was heritable and succession to it was governed by the rules of personal law. In the present case, there is no right to succession as such-whoever gets the estate as a result of the decision of the Chief Minister gets it by way of regrant made by the State. That is why we are satisfied that the challenge to the validity of S. 13(2) on the ground that it contravenes Art. 14 cannot beappears that the Firman by which the Nizam appointed the first commission of Enquiry refers to the estate of the deceased Nawab in general and is not apparently confined to his Atiyat estate. Simiarly, the order passed by the Nizam that the Government should take possession of the deceased Nawabs property appears to have been implemented in regard to both Atiyat and non-Atiyat estates left by the Nawab. The Chief Ministers order confirming the report of the special Tribunal subsequently appointed is likewise vague and may seem to cover both the Atiyat and non-Atiyat estates. The petitioners contend that whatever may be the position in regard to the Atiyat estate, the Chief Minister had no right to make an order in respect of non-Atiyat estate; indeed the Nizam himself could not have appointed an Enquiry Commission in respect of non-Atiyat estate and so the dispute in regard to the succession to the said estate must be left to be decided according to the personal law of the parties and it must be tried by the ordinary Civil Courts. The position is not disputed either by Mr. Viswanatha Sastri who appeared for the State or by Mr. Latifi who appeared for the respondents before us. Incidentally, we may add that it appears that litigation is pending in respect of this property between some the parties in Civil Suit No. 139 of 1355 F. Since it is common ground before us that the non-Atiyat estate is not covered by the order passed by the Chief Minister, all that we wish to do in the present Writ Petition is to make it clear that the said order does not relate to non-Atiyat estate and that questions of title in respect of it will have to be tried in the Civil Courts. | 0 | 5,165 | 1,371 | ### Instruction:
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### Input:
and it is a also true that generally the property of the deceased Jagirdar was granted to the person who was held by the Nizam to be the successor of the deceased Jagirdar. But that does not affect the true legal character of the Jagir. This position is borne out by the previous Firman issued by the Nizam in regard to the enquiry of the Atiyat estates. Circular No. 34 of 1341 F prescribed rules for conducting enquiries and passing decisions in cases of Inam. This circular was subsequently superseded and in its place Circular No. 10 of 1338 F was issued. The date of this latter circular is June 13, 1929. Several rules are prescribed in the form of sections for holding enquiries and passing decisions in Inam cases. It is not necessary to refer to the sections of this Circular in detail. It may be enough to state that three classes of officers are contemplated by the Circular for holding the enquiry. They are given powers to hold the enquiry. The enquiries are intended to be held generally in accordance with the procedure prescribed in the Civil Procedure Code. Appeals are provided against the decision of one officer to the officer higher in rank, but the ultimate position appears to be clear; when the Nizam-e-Atiyat expresses his opinion and submits it to the Honble the Revenue Member the Revenue Member thereupon expresses his own opinion, and on considering all the opinions expressed in the enquiry, "the Nizam is graciously pleased to issue his Firman and the Firman thus issued will be binding on the parties." Thus, it appears that though formal provisions were made in regard to the holding of the enquiry, the nature of the enquiry was essentially consultative and the Nizam was not bound by the decisions reached by the several officers authorised to hold the enquiry. The fact that the Nizam usually accepted the decision of the enquiry does not alter the legal position that the Nizam might well have refused to accept the opinion and might even have refused to make a grant of the estate to anyone among the several, claimants.Therefore, even under the Circulars issued by the Nizam for holding enquiries into the questions of succession to Jagirs, the position appears to be clear that jagirs were not heritable and on the death of the Jagirdar, on principle and in theory, it was always a case of resumption and regrant.20. If that be so, any person who claimed to be the successor of the deceased Jagirdar had no right to come to a Civil Court for establishing that claim. In fact, there is no claim to succession at all, the question of regrant being always in the absolute discretion of the Nizam. After the Rule of the Nizam came to an end, the only change that occurred was that on the death of the Jagirdar, the properly vested in the State and could be regranted to a successor in the discretion of the State. Therefore, in our opinion the argument that by denying the petitioners the right to establish a claim in the Civil Court, the impugned provision of S. 18 (2) offends against Art. 14 of the Constitution, cannot be sustained. The property in respect of which the claim is sought to be made is not like the property in the case of Ameerunnissa at all. In that case, the property was heritable and succession to it was governed by the rules of personal law. In the present case, there is no right to succession as such-whoever gets the estate as a result of the decision of the Chief Minister gets it by way of regrant made by the State. That is why we are satisfied that the challenge to the validity of S. 13(2) on the ground that it contravenes Art. 14 cannot be sustained.21.In view of the special character of the property in question, it is obvious that the petitioners cannot challenge the validity of S. 13(2) on the ground that it contravenes Art. 19(1)(f).22. There is one more point which needs to be considered and that relates to the non-Atiyat estate left by the deceased Nawab Kamal Yar Jung. It appears that the Firman by which the Nizam appointed the first commission of Enquiry refers to the estate of the deceased Nawab in general and is not apparently confined to his Atiyat estate. Simiarly, the order passed by the Nizam that the Government should take possession of the deceased Nawabs property appears to have been implemented in regard to both Atiyat and non-Atiyat estates left by the Nawab. The Chief Ministers order confirming the report of the special Tribunal subsequently appointed is likewise vague and may seem to cover both the Atiyat and non-Atiyat estates. The petitioners contend that whatever may be the position in regard to the Atiyat estate, the Chief Minister had no right to make an order in respect of non-Atiyat estate; indeed the Nizam himself could not have appointed an Enquiry Commission in respect of non-Atiyat estate and so the dispute in regard to the succession to the said estate must be left to be decided according to the personal law of the parties and it must be tried by the ordinary Civil Courts. The position is not disputed either by Mr. Viswanatha Sastri who appeared for the State or by Mr. Latifi who appeared for the respondents before us. Incidentally, we may add that it appears that litigation is pending in respect of this property between some the parties in Civil Suit No. 139 of 1355 F. Since it is common ground before us that the non-Atiyat estate is not covered by the order passed by the Chief Minister, all that we wish to do in the present Writ Petition is to make it clear that the said order does not relate to non-Atiyat estate and that questions of title in respect of it will have to be tried in the Civil Courts.
### Response:
0
### Explanation:
the petitioners make a claim is fundamentally different from that in the case of Ameerunuissa Begum. The property in the latter case was heritable property succession to which had to be determined under the principles of the personal law applicable to the parties, while in the present case, the succession to Atiyat property does not come as a matter of right to the heirs of the last holder. Therefore, in our opinion, the argument based ripen the decision of the case Ameerunnissa Begum can notwe do not think it is necessary to examine the merits of this argument, though we may add that, prima facie, classification made between cases decided and those not decided may not be irrational or unreasonable.It is true that on the death of a Jagirdar an enquiry was held about the succession to the said Jagir either by the Atiyat Courts or by a commission or Tribunal specially appointed in that behalf; and it is a also true that generally the property of the deceased Jagirdar was granted to the person who was held by the Nizam to be the successor of the deceased Jagirdar. But that does not affect the true legal character of the Jagir. This position is borne out by the previous Firman issued by the Nizam in regard to the enquiry of the Atiyat estates. Circular No. 34 of 1341 F prescribed rules for conducting enquiries and passing decisions in cases of Inam. This circular was subsequently superseded and in its place Circular No. 10 of 1338 F was issued. The date of this latter circular is June 13, 1929. Several rules are prescribed in the form of sections for holding enquiries and passing decisions in Inam cases. It is not necessary to refer to the sections of this Circular in detail. It may be enough to state that three classes of officers are contemplated by the Circular for holding the enquiry. They are given powers to hold the enquiry. The enquiries are intended to be held generally in accordance with the procedure prescribed in the Civil Procedure Code. Appeals are provided against the decision of one officer to the officer higher in rank, but the ultimate position appears to be clear; when the Nizam-e-Atiyat expresses his opinion and submits it to the Honble the Revenue Member the Revenue Member thereupon expresses his own opinion, and on considering all the opinions expressed in the enquiry, "the Nizam is graciously pleased to issue his Firman and the Firman thus issued will be binding on the parties." Thus, it appears that though formal provisions were made in regard to the holding of the enquiry, the nature of the enquiry was essentially consultative and the Nizam was not bound by the decisions reached by the several officers authorised to hold the enquiry. The fact that the Nizam usually accepted the decision of the enquiry does not alter the legal position that the Nizam might well have refused to accept the opinion and might even have refused to make a grant of the estate to anyone among the several, claimants.Therefore, even under the Circulars issued by the Nizam for holding enquiries into the questions of succession to Jagirs, the position appears to be clear that jagirs were not heritable and on the death of the Jagirdar, on principle and in theory, it was always a case of resumption andin our opinion the argument that by denying the petitioners the right to establish a claim in the Civil Court, the impugned provision of S. 18 (2) offends against Art. 14 of the Constitution, cannot be sustained. The property in respect of which the claim is sought to be made is not like the property in the case of Ameerunnissa at all. In that case, the property was heritable and succession to it was governed by the rules of personal law. In the present case, there is no right to succession as such-whoever gets the estate as a result of the decision of the Chief Minister gets it by way of regrant made by the State. That is why we are satisfied that the challenge to the validity of S. 13(2) on the ground that it contravenes Art. 14 cannot beappears that the Firman by which the Nizam appointed the first commission of Enquiry refers to the estate of the deceased Nawab in general and is not apparently confined to his Atiyat estate. Simiarly, the order passed by the Nizam that the Government should take possession of the deceased Nawabs property appears to have been implemented in regard to both Atiyat and non-Atiyat estates left by the Nawab. The Chief Ministers order confirming the report of the special Tribunal subsequently appointed is likewise vague and may seem to cover both the Atiyat and non-Atiyat estates. The petitioners contend that whatever may be the position in regard to the Atiyat estate, the Chief Minister had no right to make an order in respect of non-Atiyat estate; indeed the Nizam himself could not have appointed an Enquiry Commission in respect of non-Atiyat estate and so the dispute in regard to the succession to the said estate must be left to be decided according to the personal law of the parties and it must be tried by the ordinary Civil Courts. The position is not disputed either by Mr. Viswanatha Sastri who appeared for the State or by Mr. Latifi who appeared for the respondents before us. Incidentally, we may add that it appears that litigation is pending in respect of this property between some the parties in Civil Suit No. 139 of 1355 F. Since it is common ground before us that the non-Atiyat estate is not covered by the order passed by the Chief Minister, all that we wish to do in the present Writ Petition is to make it clear that the said order does not relate to non-Atiyat estate and that questions of title in respect of it will have to be tried in the Civil Courts.
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M/s. Jaipur Udyog Limited & Another Vs. Commissioner of Income Tax, Delhi, Rajasthan & Another | of the claim in making a provisional assessment. In our judgment, if it be granted that the Income-tax Officer has jurisdiction to hold an enquiry into disputed matters, the expression "provisional assessment" may lose all significance: the Income-tax Officer may under a summary assessment without giving an opportunity to the assessee to explain his claim negative it and the assessee has no redress under the Act against any erroneous or arbitrary action. The Court would not, unless compelled by the phraseology of the statute or by the clear implication arising therefrom, be justified in accepting that view. The clearest implication of S. 141 bars an enquiry at the stage of making a provisional assessment into disputed questions of law and fact: it is a matter of no moment that the dispute raised is complicated or is easy of solution. In our judgment, once a dispute is raised by the assessee the Income-tax Officer has no discretion. By sub-section (2) of S. 141 the Income-tax Officer is enjoined to give effect to the provisions of Ss. 32 (2), 72 (1), 73(2) and 74 (1) of the Act: Sub-s. (2) does not enlarge his jurisdiction under sub-s. (1).8. The High Court was of the view that the basic scheme of the Act is that tax is to be charged at the rate or rates prescribed for the year on the total income of the assessee and in accordance with the provisions of the Act, and that this basic scheme applies alike to a provisional assessment as to a regular assessment. Consequently in construing the provisions of S. 141 of the Act, assessment of tax must also be made in accordance with and subject to the provision of the Act, i. e. in making a provisional assessment the "necessary facts" about the income of the assessee must be taken by the Income-tax Officer from the return and the documents accompanying it and he should not travel beyond, but in making the provisional assessment he cannot ignore the other statutory provisions: he must apply the law correctly to the admitted facts as per return. The High Court proceeded to observe:"The combined effect of the two sections, namely, Sections 72 and 80 of the Act, is that a business loss can be carried forward to the subsequent assessment years only when it has been determined in pursuance of a return filed under Section 139 of the Act."The claim of the Company that it was entitled to the benefit of carry forward losses of previous years, merely because it had shown such losses in the returns, could not, in the view of the High Court, be accepted: to give effect to the claim of the Company, in the view of the High Court will be to ignore the provisions of S. 80 which apply both to a regular assessment and a provisional assessment under S. 141.9. We are unable to accept the opinion of the High Court. If it be assumed that provisional assessment has to be made in accordance with and subject to the provisions of the Act, distinction between a provisional assessment and a regular assessment gets completely blurred. The scheme of S. 141 is to call upon the assessee to pay tax provisionally at the appropriate rate on what he admits is his taxble income, subject to the benefit of the allowances under sub-s. (2). The section does not permit an enquiry to be made whether the total income returned by the assessee exceeds the amount admitted by him, nor whether the allowances or deductions claimed are admissible. If there be a discrepancy between the return made and the accounts and documents accompanying the return, the Income-tax Officer may ask the assessee to explain the discrepancy, but he must make a provisional assessment on the basis of the return initially made or clarified and the accounts and documents filled. He cannot make a provisional assessment by holding that certain claims made by the assessee are in law unjustified. If it transpires that the assessee has without reasonable cause concealed particulars of his income or has furnished inaccurate particulars of his income, it may be open to the Income-tax Officer to impose penalty upon him after the regular assessment is completed. But it is not open to him to determine whether there has been any concealment of particulars of income or to decide whether claims which have been made are unwarranted. In the view we have expressed, the Income-tax Officer was not justified in holding that the claim made by the Company for carrying forward and seeking to debit against Rs. 74 lakhs odd an amount of Rs. 103 lakhs odd was liable to be rejected.10. For the same reasons in making the provisional assessment for the year 1964-65 the Income-tax Officer was not entitled to ignore the claim made by the Company that against the income of Rs. 59,89,757/- returned, Rs. 36,01,735/- should be permitted to be debited. The order demanding tax of Rs. 17,32,768-60 for the year1964-65 also was, in our view, erroneous.11. For the year 1965-66 the Income-tax Officer demanded payment of advance tax on the provisional assessment for the year 1964-65.It is true that under subs. (3) of S. 210 as inserted by Act 13 of 1963 and later modified by Act 31 of 1964 the Income-tax Officer is entitled to make an order for payment of advance-tax on the basis of provisional assessment made under S. 141, and he is not obliged to demand advance-tax only for the amount provisionally assessed by way of regular assessment in respect of any previous year. Sub-section (3) of S. 210, however, predicates a valid provisional assessment on the basis of which advance-tax may be demanded.But the provisional assessment for the year 1964-65 made by the Income-tax Officer was invalid, and tax could not be demanded on that invalid assessment. No order for payment of advance-tax for the year 1965-66 could then be made, relying upon the provisional assessment for the year 1964-65. | 1[ds]8. The High Court was of the view that the basic scheme of the Act is that tax is to be charged at the rate or rates prescribed for the year on the total income of the assessee and in accordance with the provisions of the Act, and that this basic scheme applies alike to a provisional assessment as to a regular assessment. Consequently in construing the provisions of S. 141 of the Act, assessment of tax must also be made in accordance with and subject to the provision of the Act, i. e. in making a provisional assessment the "necessary facts" about the income of the assessee must be taken by the Income-tax Officer from the return and the documents accompanying it and he should not travel beyond, but in making the provisional assessment he cannot ignore the other statutory provisions: he must apply the law correctly to the admitted facts as perclaim of the Company that it was entitled to the benefit of carry forward losses of previous years, merely because it had shown such losses in the returns, could not, in the view of the High Court, be accepted: to give effect to the claim of the Company, in the view of the High Court will be to ignore the provisions of S. 80 which apply both to a regular assessment and a provisional assessment under S. 141.9. We are unable to accept the opinion of the High Court. If it be assumed that provisional assessment has to be made in accordance with and subject to the provisions of the Act, distinction between a provisional assessment and a regular assessment gets completely blurred. The scheme of S. 141 is to call upon the assessee to pay tax provisionally at the appropriate rate on what he admits is his taxble income, subject to the benefit of the allowances under sub-s. (2). The section does not permit an enquiry to be made whether the total income returned by the assessee exceeds the amount admitted by him, nor whether the allowances or deductions claimed are admissible. If there be a discrepancy between the return made and the accounts and documents accompanying the return, the Income-tax Officer may ask the assessee to explain the discrepancy, but he must make a provisional assessment on the basis of the return initially made or clarified and the accounts and documents filled. He cannot make a provisional assessment by holding that certain claims made by the assessee are in law unjustified. If it transpires that the assessee has without reasonable cause concealed particulars of his income or has furnished inaccurate particulars of his income, it may be open to the Income-tax Officer to impose penalty upon him after the regular assessment is completed. But it is not open to him to determine whether there has been any concealment of particulars of income or to decide whether claims which have been made are unwarranted. In the view we have expressed, the Income-tax Officer was not justified in holding that the claim made by the Company for carrying forward and seeking to debit against Rs. 74 lakhs odd an amount of Rs. 103 lakhs odd was liable to be rejected.10. For the same reasons in making the provisional assessment for the year 1964-65 the Income-tax Officer was not entitled to ignore the claim made by the Company that against the income of Rs. 59,89,757/- returned, Rs. 36,01,735/- should be permitted to be debited. The order demanding tax of Rs. 17,32,768-60 for the year1964-65 also was, in our view, erroneous.11. For the year 1965-66 the Income-tax Officer demanded payment of advance tax on the provisional assessment for the year 1964-65.It is true that under subs. (3) of S. 210 as inserted by Act 13 of 1963 and later modified by Act 31 of 1964 the Income-tax Officer is entitled to make an order for payment of advance-tax on the basis of provisional assessment made under S. 141, and he is not obliged to demand advance-tax only for the amount provisionally assessed by way of regular assessment in respect of any previous year. Sub-section (3) of S. 210, however, predicates a valid provisional assessment on the basis of which advance-tax may be demanded.But the provisional assessment for the year 1964-65 made by the Income-tax Officer was invalid, and tax could not be demanded on that invalid assessment. No order for payment of advance-tax for the year 1965-66 could then be made, relying upon the provisional assessment for the year 1964-65. | 1 | 2,745 | 814 | ### 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:
of the claim in making a provisional assessment. In our judgment, if it be granted that the Income-tax Officer has jurisdiction to hold an enquiry into disputed matters, the expression "provisional assessment" may lose all significance: the Income-tax Officer may under a summary assessment without giving an opportunity to the assessee to explain his claim negative it and the assessee has no redress under the Act against any erroneous or arbitrary action. The Court would not, unless compelled by the phraseology of the statute or by the clear implication arising therefrom, be justified in accepting that view. The clearest implication of S. 141 bars an enquiry at the stage of making a provisional assessment into disputed questions of law and fact: it is a matter of no moment that the dispute raised is complicated or is easy of solution. In our judgment, once a dispute is raised by the assessee the Income-tax Officer has no discretion. By sub-section (2) of S. 141 the Income-tax Officer is enjoined to give effect to the provisions of Ss. 32 (2), 72 (1), 73(2) and 74 (1) of the Act: Sub-s. (2) does not enlarge his jurisdiction under sub-s. (1).8. The High Court was of the view that the basic scheme of the Act is that tax is to be charged at the rate or rates prescribed for the year on the total income of the assessee and in accordance with the provisions of the Act, and that this basic scheme applies alike to a provisional assessment as to a regular assessment. Consequently in construing the provisions of S. 141 of the Act, assessment of tax must also be made in accordance with and subject to the provision of the Act, i. e. in making a provisional assessment the "necessary facts" about the income of the assessee must be taken by the Income-tax Officer from the return and the documents accompanying it and he should not travel beyond, but in making the provisional assessment he cannot ignore the other statutory provisions: he must apply the law correctly to the admitted facts as per return. The High Court proceeded to observe:"The combined effect of the two sections, namely, Sections 72 and 80 of the Act, is that a business loss can be carried forward to the subsequent assessment years only when it has been determined in pursuance of a return filed under Section 139 of the Act."The claim of the Company that it was entitled to the benefit of carry forward losses of previous years, merely because it had shown such losses in the returns, could not, in the view of the High Court, be accepted: to give effect to the claim of the Company, in the view of the High Court will be to ignore the provisions of S. 80 which apply both to a regular assessment and a provisional assessment under S. 141.9. We are unable to accept the opinion of the High Court. If it be assumed that provisional assessment has to be made in accordance with and subject to the provisions of the Act, distinction between a provisional assessment and a regular assessment gets completely blurred. The scheme of S. 141 is to call upon the assessee to pay tax provisionally at the appropriate rate on what he admits is his taxble income, subject to the benefit of the allowances under sub-s. (2). The section does not permit an enquiry to be made whether the total income returned by the assessee exceeds the amount admitted by him, nor whether the allowances or deductions claimed are admissible. If there be a discrepancy between the return made and the accounts and documents accompanying the return, the Income-tax Officer may ask the assessee to explain the discrepancy, but he must make a provisional assessment on the basis of the return initially made or clarified and the accounts and documents filled. He cannot make a provisional assessment by holding that certain claims made by the assessee are in law unjustified. If it transpires that the assessee has without reasonable cause concealed particulars of his income or has furnished inaccurate particulars of his income, it may be open to the Income-tax Officer to impose penalty upon him after the regular assessment is completed. But it is not open to him to determine whether there has been any concealment of particulars of income or to decide whether claims which have been made are unwarranted. In the view we have expressed, the Income-tax Officer was not justified in holding that the claim made by the Company for carrying forward and seeking to debit against Rs. 74 lakhs odd an amount of Rs. 103 lakhs odd was liable to be rejected.10. For the same reasons in making the provisional assessment for the year 1964-65 the Income-tax Officer was not entitled to ignore the claim made by the Company that against the income of Rs. 59,89,757/- returned, Rs. 36,01,735/- should be permitted to be debited. The order demanding tax of Rs. 17,32,768-60 for the year1964-65 also was, in our view, erroneous.11. For the year 1965-66 the Income-tax Officer demanded payment of advance tax on the provisional assessment for the year 1964-65.It is true that under subs. (3) of S. 210 as inserted by Act 13 of 1963 and later modified by Act 31 of 1964 the Income-tax Officer is entitled to make an order for payment of advance-tax on the basis of provisional assessment made under S. 141, and he is not obliged to demand advance-tax only for the amount provisionally assessed by way of regular assessment in respect of any previous year. Sub-section (3) of S. 210, however, predicates a valid provisional assessment on the basis of which advance-tax may be demanded.But the provisional assessment for the year 1964-65 made by the Income-tax Officer was invalid, and tax could not be demanded on that invalid assessment. No order for payment of advance-tax for the year 1965-66 could then be made, relying upon the provisional assessment for the year 1964-65.
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1
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8. The High Court was of the view that the basic scheme of the Act is that tax is to be charged at the rate or rates prescribed for the year on the total income of the assessee and in accordance with the provisions of the Act, and that this basic scheme applies alike to a provisional assessment as to a regular assessment. Consequently in construing the provisions of S. 141 of the Act, assessment of tax must also be made in accordance with and subject to the provision of the Act, i. e. in making a provisional assessment the "necessary facts" about the income of the assessee must be taken by the Income-tax Officer from the return and the documents accompanying it and he should not travel beyond, but in making the provisional assessment he cannot ignore the other statutory provisions: he must apply the law correctly to the admitted facts as perclaim of the Company that it was entitled to the benefit of carry forward losses of previous years, merely because it had shown such losses in the returns, could not, in the view of the High Court, be accepted: to give effect to the claim of the Company, in the view of the High Court will be to ignore the provisions of S. 80 which apply both to a regular assessment and a provisional assessment under S. 141.9. We are unable to accept the opinion of the High Court. If it be assumed that provisional assessment has to be made in accordance with and subject to the provisions of the Act, distinction between a provisional assessment and a regular assessment gets completely blurred. The scheme of S. 141 is to call upon the assessee to pay tax provisionally at the appropriate rate on what he admits is his taxble income, subject to the benefit of the allowances under sub-s. (2). The section does not permit an enquiry to be made whether the total income returned by the assessee exceeds the amount admitted by him, nor whether the allowances or deductions claimed are admissible. If there be a discrepancy between the return made and the accounts and documents accompanying the return, the Income-tax Officer may ask the assessee to explain the discrepancy, but he must make a provisional assessment on the basis of the return initially made or clarified and the accounts and documents filled. He cannot make a provisional assessment by holding that certain claims made by the assessee are in law unjustified. If it transpires that the assessee has without reasonable cause concealed particulars of his income or has furnished inaccurate particulars of his income, it may be open to the Income-tax Officer to impose penalty upon him after the regular assessment is completed. But it is not open to him to determine whether there has been any concealment of particulars of income or to decide whether claims which have been made are unwarranted. In the view we have expressed, the Income-tax Officer was not justified in holding that the claim made by the Company for carrying forward and seeking to debit against Rs. 74 lakhs odd an amount of Rs. 103 lakhs odd was liable to be rejected.10. For the same reasons in making the provisional assessment for the year 1964-65 the Income-tax Officer was not entitled to ignore the claim made by the Company that against the income of Rs. 59,89,757/- returned, Rs. 36,01,735/- should be permitted to be debited. The order demanding tax of Rs. 17,32,768-60 for the year1964-65 also was, in our view, erroneous.11. For the year 1965-66 the Income-tax Officer demanded payment of advance tax on the provisional assessment for the year 1964-65.It is true that under subs. (3) of S. 210 as inserted by Act 13 of 1963 and later modified by Act 31 of 1964 the Income-tax Officer is entitled to make an order for payment of advance-tax on the basis of provisional assessment made under S. 141, and he is not obliged to demand advance-tax only for the amount provisionally assessed by way of regular assessment in respect of any previous year. Sub-section (3) of S. 210, however, predicates a valid provisional assessment on the basis of which advance-tax may be demanded.But the provisional assessment for the year 1964-65 made by the Income-tax Officer was invalid, and tax could not be demanded on that invalid assessment. No order for payment of advance-tax for the year 1965-66 could then be made, relying upon the provisional assessment for the year 1964-65.
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MT Pamboor 2 (IMO 9914852) and Ors Vs. Shiny Shipping & Logistics Private Limited and Ors | fraudulent activity. Though this was in the context of binding third parties to arbitration clauses, the principle remains. Similarly, in Vodafone International Holdings BV v Union of India, ((2012) 6 SCC 613 ; paragraph 74) the Supreme Court held (in the context of taxation) that to properly invoke the doctrines of beneficial ownership, lifting the corporate veil or concept of alter ego, it must be shown that the transaction was a colourable device. When this is successfully done, the separate corporate juristic entity principle will be ignored, being seen as a device or a conduit in the pejorative sense. 54. An instructive recent decision is that of the Supreme Court in Gemini Bay Transcription (P) Ltd v Integrated Sales Service Ltd. ((2022) 1 SCC 753) That was a case of enforcement of a foreign award. The arbitrator, seated in Delaware, USA, had to decide, among other things, whether the alter ego doctrine warranted piercing the corporate veil. (Gemini Bay, supra, paragraph 13) This was answered by the tribunal by saying that before it could pierce a corporate veil, the tribunal had to carefully review a complex set of factual, documentary and testimonial evidence. In other words, the corporate veil could not be pierced for the mere asking. A bundle of criteria must be considered, including control but also whether the corporate form was used as a façade to commit a fraud. (Gemini Bay, supra, paragraph 14) As the tribunal said, the devil is in the details. The Supreme Court considered the tribunals approach in paragraph 58 and said that the conclusion was arrived at after an appreciation of the oral and documentary evidence, and supported by reasons. 55. Therefore, to deploy the alter ego doctrine justifying a piercing of the corporate veil, the defendant or debtor must, to use a Dickensian phrase, be shown to be an Artful Dodger. Otherwise, the very essence of corporate/company law and its fundamental precept that every company is a distinct legal entity would get effaced. The mere commonality or common directorships or interlocking shareholding are by themselves not even prima facie evidence or one being the alter ego of the other. 56. Mr Kapadia says the alter ego argument is his fallback argument. The first is that Shiny Shipping is liable for the salvage services of provided to Tresta Trading, i.e., as a matter of contractual obligation. This is based on the documentation to which we have referred above and this is sufficient to show beneficial ownership even absent any case on fraud. (There is a reference to the concept of beneficial ownership in the decision of a learned single Judge of this Court in Lufeng Shipping Co Ltd v MV Rainbow Ace & Ors, [2013 SCC OnLine Bom 1790 : (2013) 7 Bom CR 762], but this was before the 2017 Act) According to Mr Kapadia, there are three or four distinct items that establish this so-called beneficial ownership. The first is Ms Noronhas 3rd February 2022 email. The second is Polygreens reply with the LOF Salvage Agreement of 3rd February 2012. Then there is the message from the insurance brokers of Tresta Trading which gave the names of both companies, and, finally, the so-called ushers report. 57. On a careful consideration, we are unable to accept that Polygreen had in fact made out any such case for an arrest. The entirety of its case comes down to a single insertion made by Polygreen itself in the LOF Salvage Form and the failure of Shiny Shippings employee to delete that endorsement. Whether this was to the mind of Shiny Shippings employee, whether it was an oversight, or whether it was deliberate, are matters for trial. On their own or even with the other documentation, these cannot lead to the conclusion of beneficial ownership, or of one company being the alter ego of the other. The fact that the director of a holding company is copied on an email does not even prima facie establish that two are a single entity. 58. Mr Kapadia insists that Polygreen was deceived, induced, misled — and other words of that stripe — into believing that the two companies were one. This argument just makes no sense at all. There is simply no logical reason why Tresta Trading would lead Polygreen to believe that it and Shiny Shipping were one, thereby opening the door or paving the road for Polygreen to move against Shiny Shippings asset exclusively in India, MT Pamboor 2. If Mr Kapadias case on this is to be accepted, it completely torpedoes any case on fraud or deceit in hiding assets, and that puts paid to any invocation of the alter ego doctrine. 59. Has Polygreen been able to establish its case under Section 5(2) of the Admiralty Act As we noted, to do that, Polygreen had to establish an in personam liability of Shiny Shipping, the registered owner of MT Pamboor 2. Polygreen may have an in personam liability against Tresta Trading. But to cross the bridge or divide between the Tresta Trading and Shiny Trading, Polygreen had to show with far more cogent and persuasive material than we have before us that the two were indeed the same, the Tresta Trading was set up to defraud creditors, that Tresta Trading is in fact nothing but a shell company with no business and no assets. Polygreen fails on every single one of these determinants. Its entire case is built on conjecture and surmise, 60. In conclusion we note that Polygreen has a pending arbitration claim in London against Tresta Trading. It might indeed be very peculiar that, while Polygreen believes it can move against Shiny Shipping here for an arrest of MT Pamboor 2, it does not, by the same token and the same logic, seek to include Shiny Shipping as part of arbitration agreement in London as well under the Group of Companies doctrine. We do not see how from the same cause of action, a plaintiff can make two such conflicting assertions. | 1[ds]7. The Defendants came up in Appeal. The principal ground canvassed, and we think rightly, by Mr Dhond for the Appellants was that the impugned order could not have required both the furnishing of a full security and yet continued the arrest. We believe Mr Dhond is correct. It is much too well settled to admit of any repetition or need for an authority that when a vessel is arrested, that order of arrest can always be vacated upon furnishing full security. Indeed, that is the right of the arrested Defendant vessel, and of its owner. Indeed, the order of arrest itself says as much. Thus, after requiring furnishing a full security, MT Pamboor 2 could not possibly have been ordered to remain under arrest. That order was plainly contrary to settled law and would have had to be set aside.9. As it happens, we need not examine the Appeal itself or the impugned order in any detail. The reason is that both sides specifically accepted our suggestion that, with their consent, we would withdraw the Defendants Interim Application for vacating the order of arrest to ourselves and decide it here rather than requesting an already overburdened learned Single Judge to give the matter priority. That the matter needed priority was, to our minds not in doubt, because, as Mr Dhond pointed out, Shiny Shipping was incurring significant losses on account of the arrest. It had to pay EMI and bank dues. The arrest resulted in a complete stoppage of its earnings. Therefore, the urgency. We specifically pointed out to both sides that should they accept our suggestion, each side would undoubtedly loose the right of an intra-court Appeal. Both sides sought time to take instructions. They did so, and finally consented to our hearing the Interim Application (L) No. 11655 of 2022. We have noted some of this in our order of 20th July 2022. Five days later, on 25th July 2022, we noted specifically that both sides, having obtained instructions, consented to the main Interim Application (L) No. 11655 of 2022 being withdrawn to this Court for final disposal.10. It is in these circumstances that we have heard both sides on the Interim Application. Perhaps as a matter of formality and for good order, we allow the Appeal itself. The impugned ad-interim order of 6th June 2022 is, by consent, quashed and set aside. The result is that the order of arrest has continued until today when we are pronouncing judgment.11. We begin with some undisputed facts. We will then turn to the averments made in the Plaint and in the Interim Application. There is no doubt that Polygreen has no direct commercial/contractual relationship with Shiny Shipping and has rendered no service to MT Pamboor 2. This is central to the discussion that follows. It is Mr Kapadias case for Polygreen that a direct connection or relationship is not required in view of the averments made in the Plaint and on the basis of which the order of arrest was granted.12. What is also undisputed is that there exists another company Tresta Trading, incorporated in Mauritius. This company owns another vessel MT Tresta Star. Tresta Trading is a wholly-owned 100% subsidiary of Shiny Shipping. That there is a commonality of shareholders is also undisputed. The same family runs both entities. Shiny Shipping was established in 2000. Tresta Trading was incorporated in Mauritius in 2019. Tresta Trading through and with MT Tresta Star has contracts with Indian Oil (Mauritius) Limited or IOML, a wholly owned subsidiary of Indian Oil Company Ltd, or IOCL. This is an Indian company, as we all know, but IOML is the third largest entity in its segment in Mauritius. Tresta Trading does the work of bunkering in Mauritius. Its vessel, MT Tresta Star, flies a foreign flag, i.e., the flag of Mauritius. There is no dispute that as a matter of record, Tresta Trading alone owns MT Tresta Star, and Shiny Shipping alone owns MT Pamboor 2.Matters were obviously proceeding with great urgency, and that was perfectly understandable. On that very day, 3rd February 2022, Polygreen forwarded what is called a Lloyds Standard Form Salvage Agreement (also dated 3rd February 2022 and referred as the LOF Salvage Agreement) by email to Ms Noronha and others copied on her originating mail. A copy of this of the LOF Salvage form is included in the compilation at page 265. It has several boxes with entries. This is two column tabular format.29. At no point is there an assertion that Polygreen ever provided services to MT Pamboor 2. There is also no assertion, other than the LOF Salvage Agreements and emails referred to above, that Polygreen and Shiny Shipping had any independent contractual relationship.30. Then there are averments regarding the emails and documents to which we have referred to above. These are set out from paragraphs 13 onward to mount the claim that Tresta Trading is a mere brass plate subsidiary of Shiny Shipping. Therefore, the assertion is, that which binds Tresta Trading will necessarily bind Shiny Shipping. The case is sought to be buttressed by saying that Polygreen was misled, deceived, deluded and hoodwinked into believing that the two corporates were one and the same and therefore the assets of the subsidiary were effectively the assets of the holding company. Averments are made about the family holdings in the two companies, and it is alleged that Shiny Shipping exercises overarching dominion and control over its so-called brass plate subsidiary Tresta Trading. The subsidiary, Tresta Trading, is said to be bound hand and foot to the dictates of Shiny Shipping. In paragraph 20 there is a specific assertion that Tresta Trading is a shell company with no significant asset other than Tresta Star, which is now a wreck. Paragraph 21 tells us that Polygreen is pursing its claim against Tresta Trading in arbitration in London and the claim in the present suit is only against the Shiny Shipping. Once again there is a repetition in some later paragraphs of so called false representations said to have been made by the Noronhas to Polygreen.31. What we have therefore is a case that is clearly positioned as there being a complete unity of identity between the 2nd Defendant, Shiny Shipping, and its Mauritian subsidiary, Tresta Trading. Commonality of directorships and shareholders are cited. We are asked therefore to effectively pierce the corporate veil and to hold that Shiny Shipping is the alter ego of Tresta Trading or vice versa. This, we are told, must be done because Tresta Trading is apparently a brass plate subsidiary. Reference is made to a ushers report which says that Tresta Trading was not found as its registered office in Mauritius. Importantly, there is no case other than on account of this alter ego/brass plate construct that Shiny Shipping is a debtor to Polygreen. Polygreen has no maritime lien or maritime claim over MT Pamboor 2 independently.32. The essence of the case is that Polygreen has an in personam claim against Tresta Trading, and since Tresta Trading is an alter ego of Shiny Shipping, or because the corporate veil must be pierced, therefore Polygreen can pursue its claim against Tresta Trading in India against Shiny Shipping and Shiny Shippings asset, MT Pamboor 2. On account of this alter ego construct, the asset of one company is the asset of the other, and therefore the two vessels are sister ships.33. More importantly we do not find, apart from the references to the emails, any case made out that Tresta Trading was set up as a fraud or device to defeat creditors or to move assets away from creditors reach. Tresta Trading was set up years ago as we have noted. It has independent contracts and pays tax in Mauritius. Its contracts are with IOML, said to be the third largest such company in Mauritius.34. More interestingly, we find that the entire edifice of this case is built on the failure by Tresta Trading or its employee to strike out the words and/or Shiny Shipping and Logistics Private. But in paragraph 14 at page 49 of the Plaint, the Plaintiffs say that they inserted this clause themselves deliberately. Now it is perfectly understandable that in the flurry of activity on 3rd February 2022, this detail may have been overlooked. What is unexplained is why on that date Polygreen included the name of Shiny Shipping. Much is sought to be made of the fact that Ms Noronha had copied her brother at his shinyshipping email address. But we ask ourselves, therefore what A person may have multiple email addresses. The fact that a particular email address is used does not per se establish the existence of a brass plate subsidiary or of there being an alter ego.35. Now the SCOPIC clause at page 103 in our reading has to be invoked by notice to the owners of the vessel. Clause 2 specifically says so. The only registered owner of MT Pamboor 2 is Shiny Shipping. No notice could ever have been properly given to Shiny Shipping.36. The Interim Application by MT Pamboor 2 and Shiny Shipping goes to considerable length to point out that the two entities are entirely distinct. Mr Dhond makes the point, and we think quite correctly, that merely because one corporate entity is wholly owned by another, this does not mean that the two are the same or that one is the alter ego of the other. Something more needs to be established before that conclusion can legitimately be drawn.44. We believe Mr Dhond is correct, and Mr Kapadias submission is as overbroad as Mr Dhonds regarding beneficial ownership. A more accurate interpretation perhaps would be that Section 5(1) requires that there be a maritime claim against the vessel sought to be arrested. Section 5(2) is the fallback position; if the vessel against which there is a maritime claim cannot be arrested, then any other vessel can be arrested, but this has to be lieu of the vessel against which there is a maritime claim. The maritime claim itself must exist in both cases. An action positioned under Section 5(2) is subject to its proviso. Arrest of a sister ship is thus also entirely within the frame of Section 5(2).45. Indeed, we believe this interpretation actually assists Mr Kapadia and is in his favour. For, if he can establish Polygreens case of (i) the two companies being alter egos, of piercing the corporate veil, and of beneficial ownership, and (ii) there existing an in personam claim against Tresta Trading (which is nothing but Shiny Shipping), then the arrest of MT Pamboor 2 might be justified. But the argument of beneficial ownership and the attaching of the in personam claim against Tresta Trading to Shiny Shipping are both dependent on Mr Kapadia being able to establish that the two companies are alter egos, not juridically distinct, and that the corporate veil can legitimately be lifted.46. There are possibly several ways Polygreen could go about fusing identities (to establish its case of beneficial ownership, alter ego, brass plate identity and so on). It could endeavour to show that Shiny Shipping is nothing but Tresta Trading and vice versa. Thus, it might contend that any in personam claim against Tresta Trading is a valid in personam claim against Shiny Shipping and any vessel owned by Shiny Shipping, such as MT Pamboor 2, could then be arrested. Polygreen may also assert a case on fraud, but that is problematic because the case on fraud would have to be established at trial, and no arrest could be maintained until then. The concept of a sister ship cannot be divorced from common ownership — by establishing beneficial ownership — and which, in turn, takes us back to Polygreen being able to make out a case of alter egos and unity of corporate identity.47. Shiny Shipping asserts that it was never a guarantor for the purchase of MT Tresta Star. The Equasis folder seems to show both companies as registered owners of Tresta Star. Prima facie that is an error; it is nobodys case that the two companies hold fractional shares in MT Tresta Star. But even that might not be sufficient to show that MT Pamboor 2 is a sister ship of MT Tresta Star, for there is no assertion anywhere that Tresta Trading has any stake in MT Pamboor 2 (independently of the alter ego theory).49. Then there is a reference to the decision of a learned Single Judge of this Court KR Shriram J in Universal Marine & Anr v MT Hartati. (2014 SCC OnLine Bom 223 : (2014) 3 AIR Bom R 311) Here, the learned single Judge said in paragraph 29:29. I am afraid, as regards his first submission that owner is to be read as beneficial owner and not registered owner, I cannot agree with the submissions of the learned Counsel for the Plaintiffs. As to how did the Plaintiffs and what is the basis on which the Plaintiffs obtained an order of arrest has to be seen. Arrest Convention 1999 is a legal instrument to establish international uniformity in a field of arrest of ships taking into account developments in related fields. Article 3(1) relates to arrest of a ship in respect of which a maritime claim is asserted. Article 3(2) relates to arrest of any other ship or ships other than ship in respect of which a maritime claim is asserted. Which any other ship or ships can be is clearly mentioned in Article 3(2) (a). Those are ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim and who was, when the maritime claim arose a owner of the ship in respect of which a maritime claim arose. Though the Arrest Convention has not defined who the owner is, it certainly means a registered owner. The reason why it has to be meant a registered owner is because the only person who could held be liable for a claim against the ship, is the person who owns all the shares in the ship and who would be liable on the claim in an action in personam. The only person who can be liable for action in personam is the registered owner of the vessel and no one else. If the owner should be meant to be beneficial owner, the convention would have said beneficial owner. This is because beneficial owner need not 21 NMS - 1080 - 2013 mean he is the registered owner. On the contrary registered owner or the owner in whose name the ship is registered would also be the beneficial owner unless otherwise proved. S. 25 (b) and (c) of the Merchant Shipping Act, 1958 makes it very clear. It reads as under: …50. Then in paragraph 34, KR Shriram J correctly held that Indian company law views each company as a separate and distinct legal entity, different and distinct from its shareholders and other companies. Commonality of shareholders or directors will not convert two companies into one. Shareholders are also not the owners of the assets of the company. Therefore, it is not possible to arrest a ship not owned by a person not liable for the claim, unless fraud is established. In some cases, Courts may indeed look behind the registered owner, but it can do this (and do it more than once) only if the necessary ingredient is satisfied that the independent company is nothing but a sham, an attempt to defraud creditors. Otherwise, an in personam claim lies only against the registered owner.51. We do not see how it can possibly be said of Tresta Trading today that it is a sham, a camouflage or anything of the kind. It was set up many years ago. It has independent contracts. It pays tax overseas. There is no question of an asset being moved by Tresta Trading to defeat a creditor and no such case is pleaded. Even in MT Hartati, all the ships were owned by companies that were subsidiaries; and Shriram J asked himself this question: what is so very wrong in that Alarmist cries of holding company and subsidiary do not serve the purpose.52. Then there is the reference to the decision of Shriram J again in Condor Maritime Dienstleistung GmbH & Co. KG v mv Western Light & Ors (2014 SCC Online Bom 257 : (2014) 7 Bom CR 39) on an application made by the 2nd defendant there, Kimiya Shipping Inc. Both ships in that question were not owned by the same entity but by different entities. Shriram J was asked to pierce the corporate veil. He then, like we are today, was faced with the alter ego argument based on commonality of shareholding and directors. It was alleged there that there was indeed a fraud. In paragraph 15, Shriram J correctly held that lifting of the corporate veil even on the basis of alter ego theory can be done only where a fraud is intended to be prevented. There has to be an underlying element of dishonesty. In that matter, no such case was made out. Shriram J specifically held that merely because shareholders, directors, addresses were the same, and even constituted attorneys were common, this would not automatically mean that the intention of registering two ships in different names was fraudulent.53. Can this alter ego / pierced corporate veil jurisprudence be invoked willy-nilly every time it is found that one company is the holding company or parent of another There is enough law to indicate that there is nothing so very wrong in one family setting up with common shareholding multiple companies, each holding different assets. A different consideration may arise when a company is a debtor, and it deliberately incorporates another company to move assets away to put them beyond the reach of the creditors. There, courts have frowned upon these attempts and have always allowed a creditor to follow the assets into the hands of the so-called separate company. But what is required is that there must be an element of deceit, an attempt at fraud, something colourable. In Cox & Kings Ltd v SAP India Pvt Ltd & Anr, (2022 SCC OnLine SC 570; paragraph 90) the Supreme Court said that corporate law doctrines such as piercing the veil and alter ego are a means by which to identify fraudulent activity. Though this was in the context of binding third parties to arbitration clauses, the principle remains. Similarly, in Vodafone International Holdings BV v Union of India, ((2012) 6 SCC 613 ; paragraph 74) the Supreme Court held (in the context of taxation) that to properly invoke the doctrines of beneficial ownership, lifting the corporate veil or concept of alter ego, it must be shown that the transaction was a colourable device. When this is successfully done, the separate corporate juristic entity principle will be ignored, being seen as a device or a conduit in the pejorative sense.54. An instructive recent decision is that of the Supreme Court in Gemini Bay Transcription (P) Ltd v Integrated Sales Service Ltd. ((2022) 1 SCC 753) That was a case of enforcement of a foreign award. The arbitrator, seated in Delaware, USA, had to decide, among other things, whether the alter ego doctrine warranted piercing the corporate veil. (Gemini Bay, supra, paragraph 13) This was answered by the tribunal by saying that before it could pierce a corporate veil, the tribunal had to carefully review a complex set of factual, documentary and testimonial evidence. In other words, the corporate veil could not be pierced for the mere asking. A bundle of criteria must be considered, including control but also whether the corporate form was used as a façade to commit a fraud. (Gemini Bay, supra, paragraph 14) As the tribunal said, the devil is in the details. The Supreme Court considered the tribunals approach in paragraph 58 and said that the conclusion was arrived at after an appreciation of the oral and documentary evidence, and supported by reasons.55. Therefore, to deploy the alter ego doctrine justifying a piercing of the corporate veil, the defendant or debtor must, to use a Dickensian phrase, be shown to be an Artful Dodger. Otherwise, the very essence of corporate/company law and its fundamental precept that every company is a distinct legal entity would get effaced. The mere commonality or common directorships or interlocking shareholding are by themselves not even prima facie evidence or one being the alter ego of the other.57. On a careful consideration, we are unable to accept that Polygreen had in fact made out any such case for an arrest. The entirety of its case comes down to a single insertion made by Polygreen itself in the LOF Salvage Form and the failure of Shiny Shippings employee to delete that endorsement. Whether this was to the mind of Shiny Shippings employee, whether it was an oversight, or whether it was deliberate, are matters for trial. On their own or even with the other documentation, these cannot lead to the conclusion of beneficial ownership, or of one company being the alter ego of the other. The fact that the director of a holding company is copied on an email does not even prima facie establish that two are a single entity.This argument just makes no sense at all. There is simply no logical reason why Tresta Trading would lead Polygreen to believe that it and Shiny Shipping were one, thereby opening the door or paving the road for Polygreen to move against Shiny Shippings asset exclusively in India, MT Pamboor 2. If Mr Kapadias case on this is to be accepted, it completely torpedoes any case on fraud or deceit in hiding assets, and that puts paid to any invocation of the alter ego doctrine.59. Has Polygreen been able to establish its case under Section 5(2) of the Admiralty Act As we noted, to do that, Polygreen had to establish an in personam liability of Shiny Shipping, the registered owner of MT Pamboor 2. Polygreen may have an in personam liability against Tresta Trading. But to cross the bridge or divide between the Tresta Trading and Shiny Trading, Polygreen had to show with far more cogent and persuasive material than we have before us that the two were indeed the same, the Tresta Trading was set up to defraud creditors, that Tresta Trading is in fact nothing but a shell company with no business and no assets. Polygreen fails on every single one of these determinants. Its entire case is built on conjecture and surmise,60. In conclusion we note that Polygreen has a pending arbitration claim in London against Tresta Trading. It might indeed be very peculiar that, while Polygreen believes it can move against Shiny Shipping here for an arrest of MT Pamboor 2, it does not, by the same token and the same logic, seek to include Shiny Shipping as part of arbitration agreement in London as well under the Group of Companies doctrine. We do not see how from the same cause of action, a plaintiff can make two such conflicting assertions. | 1 | 8,297 | 4,301 | ### Instruction:
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fraudulent activity. Though this was in the context of binding third parties to arbitration clauses, the principle remains. Similarly, in Vodafone International Holdings BV v Union of India, ((2012) 6 SCC 613 ; paragraph 74) the Supreme Court held (in the context of taxation) that to properly invoke the doctrines of beneficial ownership, lifting the corporate veil or concept of alter ego, it must be shown that the transaction was a colourable device. When this is successfully done, the separate corporate juristic entity principle will be ignored, being seen as a device or a conduit in the pejorative sense. 54. An instructive recent decision is that of the Supreme Court in Gemini Bay Transcription (P) Ltd v Integrated Sales Service Ltd. ((2022) 1 SCC 753) That was a case of enforcement of a foreign award. The arbitrator, seated in Delaware, USA, had to decide, among other things, whether the alter ego doctrine warranted piercing the corporate veil. (Gemini Bay, supra, paragraph 13) This was answered by the tribunal by saying that before it could pierce a corporate veil, the tribunal had to carefully review a complex set of factual, documentary and testimonial evidence. In other words, the corporate veil could not be pierced for the mere asking. A bundle of criteria must be considered, including control but also whether the corporate form was used as a façade to commit a fraud. (Gemini Bay, supra, paragraph 14) As the tribunal said, the devil is in the details. The Supreme Court considered the tribunals approach in paragraph 58 and said that the conclusion was arrived at after an appreciation of the oral and documentary evidence, and supported by reasons. 55. Therefore, to deploy the alter ego doctrine justifying a piercing of the corporate veil, the defendant or debtor must, to use a Dickensian phrase, be shown to be an Artful Dodger. Otherwise, the very essence of corporate/company law and its fundamental precept that every company is a distinct legal entity would get effaced. The mere commonality or common directorships or interlocking shareholding are by themselves not even prima facie evidence or one being the alter ego of the other. 56. Mr Kapadia says the alter ego argument is his fallback argument. The first is that Shiny Shipping is liable for the salvage services of provided to Tresta Trading, i.e., as a matter of contractual obligation. This is based on the documentation to which we have referred above and this is sufficient to show beneficial ownership even absent any case on fraud. (There is a reference to the concept of beneficial ownership in the decision of a learned single Judge of this Court in Lufeng Shipping Co Ltd v MV Rainbow Ace & Ors, [2013 SCC OnLine Bom 1790 : (2013) 7 Bom CR 762], but this was before the 2017 Act) According to Mr Kapadia, there are three or four distinct items that establish this so-called beneficial ownership. The first is Ms Noronhas 3rd February 2022 email. The second is Polygreens reply with the LOF Salvage Agreement of 3rd February 2012. Then there is the message from the insurance brokers of Tresta Trading which gave the names of both companies, and, finally, the so-called ushers report. 57. On a careful consideration, we are unable to accept that Polygreen had in fact made out any such case for an arrest. The entirety of its case comes down to a single insertion made by Polygreen itself in the LOF Salvage Form and the failure of Shiny Shippings employee to delete that endorsement. Whether this was to the mind of Shiny Shippings employee, whether it was an oversight, or whether it was deliberate, are matters for trial. On their own or even with the other documentation, these cannot lead to the conclusion of beneficial ownership, or of one company being the alter ego of the other. The fact that the director of a holding company is copied on an email does not even prima facie establish that two are a single entity. 58. Mr Kapadia insists that Polygreen was deceived, induced, misled — and other words of that stripe — into believing that the two companies were one. This argument just makes no sense at all. There is simply no logical reason why Tresta Trading would lead Polygreen to believe that it and Shiny Shipping were one, thereby opening the door or paving the road for Polygreen to move against Shiny Shippings asset exclusively in India, MT Pamboor 2. If Mr Kapadias case on this is to be accepted, it completely torpedoes any case on fraud or deceit in hiding assets, and that puts paid to any invocation of the alter ego doctrine. 59. Has Polygreen been able to establish its case under Section 5(2) of the Admiralty Act As we noted, to do that, Polygreen had to establish an in personam liability of Shiny Shipping, the registered owner of MT Pamboor 2. Polygreen may have an in personam liability against Tresta Trading. But to cross the bridge or divide between the Tresta Trading and Shiny Trading, Polygreen had to show with far more cogent and persuasive material than we have before us that the two were indeed the same, the Tresta Trading was set up to defraud creditors, that Tresta Trading is in fact nothing but a shell company with no business and no assets. Polygreen fails on every single one of these determinants. Its entire case is built on conjecture and surmise, 60. In conclusion we note that Polygreen has a pending arbitration claim in London against Tresta Trading. It might indeed be very peculiar that, while Polygreen believes it can move against Shiny Shipping here for an arrest of MT Pamboor 2, it does not, by the same token and the same logic, seek to include Shiny Shipping as part of arbitration agreement in London as well under the Group of Companies doctrine. We do not see how from the same cause of action, a plaintiff can make two such conflicting assertions.
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out. Shriram J specifically held that merely because shareholders, directors, addresses were the same, and even constituted attorneys were common, this would not automatically mean that the intention of registering two ships in different names was fraudulent.53. Can this alter ego / pierced corporate veil jurisprudence be invoked willy-nilly every time it is found that one company is the holding company or parent of another There is enough law to indicate that there is nothing so very wrong in one family setting up with common shareholding multiple companies, each holding different assets. A different consideration may arise when a company is a debtor, and it deliberately incorporates another company to move assets away to put them beyond the reach of the creditors. There, courts have frowned upon these attempts and have always allowed a creditor to follow the assets into the hands of the so-called separate company. But what is required is that there must be an element of deceit, an attempt at fraud, something colourable. In Cox & Kings Ltd v SAP India Pvt Ltd & Anr, (2022 SCC OnLine SC 570; paragraph 90) the Supreme Court said that corporate law doctrines such as piercing the veil and alter ego are a means by which to identify fraudulent activity. Though this was in the context of binding third parties to arbitration clauses, the principle remains. Similarly, in Vodafone International Holdings BV v Union of India, ((2012) 6 SCC 613 ; paragraph 74) the Supreme Court held (in the context of taxation) that to properly invoke the doctrines of beneficial ownership, lifting the corporate veil or concept of alter ego, it must be shown that the transaction was a colourable device. When this is successfully done, the separate corporate juristic entity principle will be ignored, being seen as a device or a conduit in the pejorative sense.54. An instructive recent decision is that of the Supreme Court in Gemini Bay Transcription (P) Ltd v Integrated Sales Service Ltd. ((2022) 1 SCC 753) That was a case of enforcement of a foreign award. The arbitrator, seated in Delaware, USA, had to decide, among other things, whether the alter ego doctrine warranted piercing the corporate veil. (Gemini Bay, supra, paragraph 13) This was answered by the tribunal by saying that before it could pierce a corporate veil, the tribunal had to carefully review a complex set of factual, documentary and testimonial evidence. In other words, the corporate veil could not be pierced for the mere asking. A bundle of criteria must be considered, including control but also whether the corporate form was used as a façade to commit a fraud. (Gemini Bay, supra, paragraph 14) As the tribunal said, the devil is in the details. The Supreme Court considered the tribunals approach in paragraph 58 and said that the conclusion was arrived at after an appreciation of the oral and documentary evidence, and supported by reasons.55. Therefore, to deploy the alter ego doctrine justifying a piercing of the corporate veil, the defendant or debtor must, to use a Dickensian phrase, be shown to be an Artful Dodger. Otherwise, the very essence of corporate/company law and its fundamental precept that every company is a distinct legal entity would get effaced. The mere commonality or common directorships or interlocking shareholding are by themselves not even prima facie evidence or one being the alter ego of the other.57. On a careful consideration, we are unable to accept that Polygreen had in fact made out any such case for an arrest. The entirety of its case comes down to a single insertion made by Polygreen itself in the LOF Salvage Form and the failure of Shiny Shippings employee to delete that endorsement. Whether this was to the mind of Shiny Shippings employee, whether it was an oversight, or whether it was deliberate, are matters for trial. On their own or even with the other documentation, these cannot lead to the conclusion of beneficial ownership, or of one company being the alter ego of the other. The fact that the director of a holding company is copied on an email does not even prima facie establish that two are a single entity.This argument just makes no sense at all. There is simply no logical reason why Tresta Trading would lead Polygreen to believe that it and Shiny Shipping were one, thereby opening the door or paving the road for Polygreen to move against Shiny Shippings asset exclusively in India, MT Pamboor 2. If Mr Kapadias case on this is to be accepted, it completely torpedoes any case on fraud or deceit in hiding assets, and that puts paid to any invocation of the alter ego doctrine.59. Has Polygreen been able to establish its case under Section 5(2) of the Admiralty Act As we noted, to do that, Polygreen had to establish an in personam liability of Shiny Shipping, the registered owner of MT Pamboor 2. Polygreen may have an in personam liability against Tresta Trading. But to cross the bridge or divide between the Tresta Trading and Shiny Trading, Polygreen had to show with far more cogent and persuasive material than we have before us that the two were indeed the same, the Tresta Trading was set up to defraud creditors, that Tresta Trading is in fact nothing but a shell company with no business and no assets. Polygreen fails on every single one of these determinants. Its entire case is built on conjecture and surmise,60. In conclusion we note that Polygreen has a pending arbitration claim in London against Tresta Trading. It might indeed be very peculiar that, while Polygreen believes it can move against Shiny Shipping here for an arrest of MT Pamboor 2, it does not, by the same token and the same logic, seek to include Shiny Shipping as part of arbitration agreement in London as well under the Group of Companies doctrine. We do not see how from the same cause of action, a plaintiff can make two such conflicting assertions.
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Tej Bahadur Singh Vs. State of Uttar Pradesh | narration of the prosecution case as is given by the prosecution witnesses, to say the least, was foolproof inasmuch as none of the witnesses faulted (sic faltered) anywhere in his respective statement. On that basis, we could have dismissed the appeal, yet we do not. Rather the foolproof narration given by the prosecution witnesses has left us with the impression that the story put forward is lifeless and mechanical and does not stand scrutiny when tested on the preponderance of probabilities, having regard to human behaviour in the day-to-day happenings when moving on the road of life and on that analysis, some doubts have entered our mind which we express hereafter 7. Those were the days of Emergency declared in the country. The administrative air was changed and abnormal; so was peoples behaviour. Suspicion and caution permeated the attitude and functioning of the administrators and the administered. Bearing that in mind and in that backdrop the prosecution case need have been viewed by the High Court. Now the complainant had stated that at the time of the incident he was a member of the Ticket Checker Staff Union of the Northern Railway and had been its General Secretary as well. He admitted that during the Emergency all the railway unions were under police surveillance. On December 18, 1975 when the appellant is said to have first visited him at his house the complainant could not find his name or his correct designation. The fact that the complainant was accused at that time of being a member of the Jamat-e-Islami or Muslim Majlis may have put him to alarm but that by itself could not have put him to such a terror so as to complain against the unknown public servant in writing suggesting arranging of a trap. Steps taken in that regard i. e. putting a written complaint to the District Magistrate, having obtained an order for a trap, meeting Shri Srivastava, Deputy Superintendent of police as asked, having a statement recorded by the City Magistrate, having the numbers of currency notes worth Rs. 500 mentioned in the statement, having a memorandum prepared in that regard at the police station and finally entrenching the trap party in his house, are steps based not on probability but on a mechanical certainty that the appellant would in all events visit the house of the complainant on December 21, 1975 at 7.30 p. m. The complainant did not even for a moment entertain the doubt that the visitor of December 18, 1975 could well be a fraud or a fake extortionist. He did not let even the appellant repeat the visit a time or two before coming to the conclusion that he was being subjected to pressure for doling out a substantial sum as bribe. It could well be that the appellant might not have turned up. It was speculative at least. Rather the complainant straightway taking steps of arranging a trap in theses circumstances sets a doubt in our mind. This is one circumstance which sows such doubt 8. The second circumstance is that it is inconceivable that the appellant, who is himself a Vigilance Sub-Inspector, when scheduling his visit to the house of the complainant on December 21, 1975 would himself be non-vigilant about the surroundings in which he was walking into and placing himself. On the outer scene the parking of the jeep on the roadside, wherefrom emanates a street in which the house of the complainant is situated, would by itself make him suspicious as it would not have gone unnoticed to him. That jeep may or may not have had any distinctive mark of being a police jeep, as sought to be inferred from the evidence, but that is of no consequence. The parked jeep would have caused suspicion in the mind of the appellant at least to be cautious. Further according to the complainant, the time set for meeting was 7.30 p. m. The fact that the trap party came to the house of the complainant at 6.20 p. m., more than an hour before the appointed time, are particulars which do not by themselves inspire confidence having regard to normal human behaviour 9. The third circumstance of significance is about the happening of the incident in the house of the complainant itself. Now when the appellant had entered the house an hour earlier before his scheduled visit, it cannot be expected that the members of trap party which were said to be sitting in the adjoining back room had become instantly stone-still so as to conceal their presence form the appellant. The dimensions of those two rooms 8ft. x 8ft. and 8ft. x 12ft. separated merely by a window and a door on which curtains were hanging are suggestive of the fact that if the happenings in one room could be known to the inmates of the other, the converse would also be true. Relatively, if the members of the trap party could see and hear what was happening in the drawing room through the curtains, the inmates of the drawing room could also see the presence of others in the connecting room, huddled as they were in that small space. The appellant in these circumstances could not expected to throw caution to winds and either ignore or become indifferent of the presence of the inmates of the adjoining room especially when both rooms were lit by electric tubelight and there was just a curtain intervening. Additionally, in such a situation there awakens the sixth sense in every human being so as to detect the presence of another in such close surroundings. The appellant could not have been so foolhardy to accept bribe in circumstances which were obviously suspicious, and that to in the house of the complainant, running the risk of being entrapped10. The totality of the aforesaid circumstances thus makes us to come to the conclusion that it would not be safe to sustain the conviction of the appellant on the charges framed. 10. | 1[ds]7. Those were the days of Emergency declared in the country. The administrative air was changed and abnormal; so was peoples behaviour. Suspicion and caution permeated the attitude and functioning of the administrators and the administered. Bearing that in mind and in that backdrop the prosecution case need have been viewed by the High Court. Now the complainant had stated that at the time of the incident he was a member of the Ticket Checker Staff Union of the Northern Railway and had been its General Secretary as well. He admitted that during the Emergency all the railway unions were under police surveillance. On December 18, 1975 when the appellant is said to have first visited him at his house the complainant could not find his name or his correct designation. The fact that the complainant was accused at that time of being a member of thei or Muslim Majlis may have put him to alarm but that by itself could not have put him to such a terror so as to complain against the unknown public servant in writing suggesting arranging of a trap. Steps taken in that regard i. e. putting a written complaint to the District Magistrate, having obtained an order for a trap, meeting Shri Srivastava, Deputy Superintendent of police as asked, having a statement recorded by the City Magistrate, having the numbers of currency notes worth Rs. 500 mentioned in the statement, having a memorandum prepared in that regard at the police station and finally entrenching the trap party in his house, are steps based not on probability but on a mechanical certainty that the appellant would in all events visit the house of the complainant on December 21, 1975 at 7.30 p. m. The complainant did not even for a moment entertain the doubt that the visitor of December 18, 1975 could well be a fraud or a fake extortionist. He did not let even the appellant repeat the visit a time or two before coming to the conclusion that he was being subjected to pressure for doling out a substantial sum as bribe. It could well be that the appellant might not have turned up. It was speculative at least. Rather the complainant straightway taking steps of arranging a trap in theses circumstances sets a doubt in our mind. This is one circumstance which sows such doubt8. The second circumstance is that it is inconceivable that the appellant, who is himself a Vigilance, when scheduling his visit to the house of the complainant on December 21, 1975 would himself bet about the surroundings in which he was walking into and placing himself. On the outer scene the parking of the jeep on the roadside, wherefrom emanates a street in which the house of the complainant is situated, would by itself make him suspicious as it would not have gone unnoticed to him. That jeep may or may not have had any distinctive mark of being a police jeep, as sought to be inferred from the evidence, but that is of no consequence. The parked jeep would have caused suspicion in the mind of the appellant at least to be cautious. Further according to the complainant, the time set for meeting was 7.30 p. m. The fact that the trap party came to the house of the complainant at 6.20 p. m., more than an hour before the appointed time, are particulars which do not by themselves inspire confidence having regard to normal human behaviour9. The third circumstance of significance is about the happening of the incident in the house of the complainant itself. Now when the appellant had entered the house an hour earlier before his scheduled visit, it cannot be expected that the members of trap party which were said to be sitting in the adjoining back room had become instantlyl so as to conceal their presence form the appellant. The dimensions of those two rooms 8ft. x 8ft. and 8ft. x 12ft. separated merely by a window and a door on which curtains were hanging are suggestive of the fact that if the happenings in one room could be known to the inmates of the other, the converse would also be true. Relatively, if the members of the trap party could see and hear what was happening in the drawing room through the curtains, the inmates of the drawing room could also see the presence of others in the connecting room, huddled as they were in that small space. The appellant in these circumstances could not expected to throw caution to winds and either ignore or become indifferent of the presence of the inmates of the adjoining room especially when both rooms were lit by electric tubelight and there was just a curtain intervening. Additionally, in such a situation there awakens the sixth sense in every human being so as to detect the presence of another in such close surroundings. The appellant could not have been so foolhardy to accept bribe in circumstances which were obviously suspicious, and that to in the house of the complainant, running the risk of being entrapped10. The totality of the aforesaid circumstances thus makes us to come to the conclusion that it would not be safe to sustain the conviction of the appellant on the charges framed. | 1 | 2,495 | 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.
### Input:
narration of the prosecution case as is given by the prosecution witnesses, to say the least, was foolproof inasmuch as none of the witnesses faulted (sic faltered) anywhere in his respective statement. On that basis, we could have dismissed the appeal, yet we do not. Rather the foolproof narration given by the prosecution witnesses has left us with the impression that the story put forward is lifeless and mechanical and does not stand scrutiny when tested on the preponderance of probabilities, having regard to human behaviour in the day-to-day happenings when moving on the road of life and on that analysis, some doubts have entered our mind which we express hereafter 7. Those were the days of Emergency declared in the country. The administrative air was changed and abnormal; so was peoples behaviour. Suspicion and caution permeated the attitude and functioning of the administrators and the administered. Bearing that in mind and in that backdrop the prosecution case need have been viewed by the High Court. Now the complainant had stated that at the time of the incident he was a member of the Ticket Checker Staff Union of the Northern Railway and had been its General Secretary as well. He admitted that during the Emergency all the railway unions were under police surveillance. On December 18, 1975 when the appellant is said to have first visited him at his house the complainant could not find his name or his correct designation. The fact that the complainant was accused at that time of being a member of the Jamat-e-Islami or Muslim Majlis may have put him to alarm but that by itself could not have put him to such a terror so as to complain against the unknown public servant in writing suggesting arranging of a trap. Steps taken in that regard i. e. putting a written complaint to the District Magistrate, having obtained an order for a trap, meeting Shri Srivastava, Deputy Superintendent of police as asked, having a statement recorded by the City Magistrate, having the numbers of currency notes worth Rs. 500 mentioned in the statement, having a memorandum prepared in that regard at the police station and finally entrenching the trap party in his house, are steps based not on probability but on a mechanical certainty that the appellant would in all events visit the house of the complainant on December 21, 1975 at 7.30 p. m. The complainant did not even for a moment entertain the doubt that the visitor of December 18, 1975 could well be a fraud or a fake extortionist. He did not let even the appellant repeat the visit a time or two before coming to the conclusion that he was being subjected to pressure for doling out a substantial sum as bribe. It could well be that the appellant might not have turned up. It was speculative at least. Rather the complainant straightway taking steps of arranging a trap in theses circumstances sets a doubt in our mind. This is one circumstance which sows such doubt 8. The second circumstance is that it is inconceivable that the appellant, who is himself a Vigilance Sub-Inspector, when scheduling his visit to the house of the complainant on December 21, 1975 would himself be non-vigilant about the surroundings in which he was walking into and placing himself. On the outer scene the parking of the jeep on the roadside, wherefrom emanates a street in which the house of the complainant is situated, would by itself make him suspicious as it would not have gone unnoticed to him. That jeep may or may not have had any distinctive mark of being a police jeep, as sought to be inferred from the evidence, but that is of no consequence. The parked jeep would have caused suspicion in the mind of the appellant at least to be cautious. Further according to the complainant, the time set for meeting was 7.30 p. m. The fact that the trap party came to the house of the complainant at 6.20 p. m., more than an hour before the appointed time, are particulars which do not by themselves inspire confidence having regard to normal human behaviour 9. The third circumstance of significance is about the happening of the incident in the house of the complainant itself. Now when the appellant had entered the house an hour earlier before his scheduled visit, it cannot be expected that the members of trap party which were said to be sitting in the adjoining back room had become instantly stone-still so as to conceal their presence form the appellant. The dimensions of those two rooms 8ft. x 8ft. and 8ft. x 12ft. separated merely by a window and a door on which curtains were hanging are suggestive of the fact that if the happenings in one room could be known to the inmates of the other, the converse would also be true. Relatively, if the members of the trap party could see and hear what was happening in the drawing room through the curtains, the inmates of the drawing room could also see the presence of others in the connecting room, huddled as they were in that small space. The appellant in these circumstances could not expected to throw caution to winds and either ignore or become indifferent of the presence of the inmates of the adjoining room especially when both rooms were lit by electric tubelight and there was just a curtain intervening. Additionally, in such a situation there awakens the sixth sense in every human being so as to detect the presence of another in such close surroundings. The appellant could not have been so foolhardy to accept bribe in circumstances which were obviously suspicious, and that to in the house of the complainant, running the risk of being entrapped10. The totality of the aforesaid circumstances thus makes us to come to the conclusion that it would not be safe to sustain the conviction of the appellant on the charges framed. 10.
### Response:
1
### Explanation:
7. Those were the days of Emergency declared in the country. The administrative air was changed and abnormal; so was peoples behaviour. Suspicion and caution permeated the attitude and functioning of the administrators and the administered. Bearing that in mind and in that backdrop the prosecution case need have been viewed by the High Court. Now the complainant had stated that at the time of the incident he was a member of the Ticket Checker Staff Union of the Northern Railway and had been its General Secretary as well. He admitted that during the Emergency all the railway unions were under police surveillance. On December 18, 1975 when the appellant is said to have first visited him at his house the complainant could not find his name or his correct designation. The fact that the complainant was accused at that time of being a member of thei or Muslim Majlis may have put him to alarm but that by itself could not have put him to such a terror so as to complain against the unknown public servant in writing suggesting arranging of a trap. Steps taken in that regard i. e. putting a written complaint to the District Magistrate, having obtained an order for a trap, meeting Shri Srivastava, Deputy Superintendent of police as asked, having a statement recorded by the City Magistrate, having the numbers of currency notes worth Rs. 500 mentioned in the statement, having a memorandum prepared in that regard at the police station and finally entrenching the trap party in his house, are steps based not on probability but on a mechanical certainty that the appellant would in all events visit the house of the complainant on December 21, 1975 at 7.30 p. m. The complainant did not even for a moment entertain the doubt that the visitor of December 18, 1975 could well be a fraud or a fake extortionist. He did not let even the appellant repeat the visit a time or two before coming to the conclusion that he was being subjected to pressure for doling out a substantial sum as bribe. It could well be that the appellant might not have turned up. It was speculative at least. Rather the complainant straightway taking steps of arranging a trap in theses circumstances sets a doubt in our mind. This is one circumstance which sows such doubt8. The second circumstance is that it is inconceivable that the appellant, who is himself a Vigilance, when scheduling his visit to the house of the complainant on December 21, 1975 would himself bet about the surroundings in which he was walking into and placing himself. On the outer scene the parking of the jeep on the roadside, wherefrom emanates a street in which the house of the complainant is situated, would by itself make him suspicious as it would not have gone unnoticed to him. That jeep may or may not have had any distinctive mark of being a police jeep, as sought to be inferred from the evidence, but that is of no consequence. The parked jeep would have caused suspicion in the mind of the appellant at least to be cautious. Further according to the complainant, the time set for meeting was 7.30 p. m. The fact that the trap party came to the house of the complainant at 6.20 p. m., more than an hour before the appointed time, are particulars which do not by themselves inspire confidence having regard to normal human behaviour9. The third circumstance of significance is about the happening of the incident in the house of the complainant itself. Now when the appellant had entered the house an hour earlier before his scheduled visit, it cannot be expected that the members of trap party which were said to be sitting in the adjoining back room had become instantlyl so as to conceal their presence form the appellant. The dimensions of those two rooms 8ft. x 8ft. and 8ft. x 12ft. separated merely by a window and a door on which curtains were hanging are suggestive of the fact that if the happenings in one room could be known to the inmates of the other, the converse would also be true. Relatively, if the members of the trap party could see and hear what was happening in the drawing room through the curtains, the inmates of the drawing room could also see the presence of others in the connecting room, huddled as they were in that small space. The appellant in these circumstances could not expected to throw caution to winds and either ignore or become indifferent of the presence of the inmates of the adjoining room especially when both rooms were lit by electric tubelight and there was just a curtain intervening. Additionally, in such a situation there awakens the sixth sense in every human being so as to detect the presence of another in such close surroundings. The appellant could not have been so foolhardy to accept bribe in circumstances which were obviously suspicious, and that to in the house of the complainant, running the risk of being entrapped10. The totality of the aforesaid circumstances thus makes us to come to the conclusion that it would not be safe to sustain the conviction of the appellant on the charges framed.
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Regional Manager & Anr Vs. Pawan Kumar Dubey | an order on a complaint against the respondent that the respondent had misused the services of a Chowkidar. The detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be "sweet tempered". There were some old adverse entries also against the respondent. But, they must be deemed to have been washed off by orders of his promotion, on an "ad hoc" or officiation basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules. It appears that the respondent had asked for particulars to meet the vague allegations of insubordination and disobedience which had found their way into his service record for 1972 to 1973. It has not been shown that the respondent was supplied with these particulars. He professed ignorance of occasions on which he had been disrespectful or of existence of any orders which had been disobeyed by him. These particulars could have been easily supplied to him if the allegations against him were justified The respondents representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed. His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted. In these respects, the facts of the case are similar to those of Sughar Sunghs case (supra). In addition, as the High Court points out, the express condemnation of the respondent as "not fit" for the higher post, in which his juniors were allowed to officiate, categories him as inferior to his juniors even if it was qualified by the addition of the word "yet". The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague.If there had been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have bee n instituted. Indeed, they can still be taken if there are substantial grounds against the respondent. On the other hand, if the action against him is due merely to a feeling of pique or anger with him on the part of his superior officers, to which the respondents tactlessness may have contributed, it did not deserve anything more than the warnings and the adverse entry. Indeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based. To allege such misconduct against him and then to stigmatise the respondent as "not fit" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair. It may mar or delay his chances of promotion in future. We, however, refrain from commenting further on what may or may not have been the real cause of the respondents reversion. If the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under the rules (there should be rules on the subject if there are none so far), his juniors in service should not be preferred over him. A decision given after fair comparisons with records of others officiating in the same cadre would have ensured that no violation of Article 16 took place. The sudden reversion of the petitioner, for the reason given in tile reversion order, could be held to amount to an unjustified stigma which could not be said to be "devoid of an element of punishment".As we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action. It is, however, well established that even an apparently inoffensive order may fail to pass tested imposed by Articles 16 and 311 of the Constitution. Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown t o be based on fair-play and reason when facts are actually proved which indicate that these requirements may be lacking.10. Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution. The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It d id not give the respondent any other or consequential relief. And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action.11. As we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 311(2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding. This, we think, was also the position in Sughar) Singhs case (supra) . | 0[ds]Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution. The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It d id not give the respondent any other or consequential relief. And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitivewe are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 311(2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding. This, we think, was also the position in Sughar) Singhs case (supra) . | 0 | 5,216 | 256 | ### 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:
an order on a complaint against the respondent that the respondent had misused the services of a Chowkidar. The detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be "sweet tempered". There were some old adverse entries also against the respondent. But, they must be deemed to have been washed off by orders of his promotion, on an "ad hoc" or officiation basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules. It appears that the respondent had asked for particulars to meet the vague allegations of insubordination and disobedience which had found their way into his service record for 1972 to 1973. It has not been shown that the respondent was supplied with these particulars. He professed ignorance of occasions on which he had been disrespectful or of existence of any orders which had been disobeyed by him. These particulars could have been easily supplied to him if the allegations against him were justified The respondents representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed. His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted. In these respects, the facts of the case are similar to those of Sughar Sunghs case (supra). In addition, as the High Court points out, the express condemnation of the respondent as "not fit" for the higher post, in which his juniors were allowed to officiate, categories him as inferior to his juniors even if it was qualified by the addition of the word "yet". The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague.If there had been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have bee n instituted. Indeed, they can still be taken if there are substantial grounds against the respondent. On the other hand, if the action against him is due merely to a feeling of pique or anger with him on the part of his superior officers, to which the respondents tactlessness may have contributed, it did not deserve anything more than the warnings and the adverse entry. Indeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based. To allege such misconduct against him and then to stigmatise the respondent as "not fit" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair. It may mar or delay his chances of promotion in future. We, however, refrain from commenting further on what may or may not have been the real cause of the respondents reversion. If the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under the rules (there should be rules on the subject if there are none so far), his juniors in service should not be preferred over him. A decision given after fair comparisons with records of others officiating in the same cadre would have ensured that no violation of Article 16 took place. The sudden reversion of the petitioner, for the reason given in tile reversion order, could be held to amount to an unjustified stigma which could not be said to be "devoid of an element of punishment".As we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action. It is, however, well established that even an apparently inoffensive order may fail to pass tested imposed by Articles 16 and 311 of the Constitution. Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown t o be based on fair-play and reason when facts are actually proved which indicate that these requirements may be lacking.10. Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution. The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It d id not give the respondent any other or consequential relief. And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action.11. As we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 311(2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding. This, we think, was also the position in Sughar) Singhs case (supra) .
### Response:
0
### Explanation:
Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution. The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It d id not give the respondent any other or consequential relief. And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitivewe are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 311(2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding. This, we think, was also the position in Sughar) Singhs case (supra) .
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Jai Singh Jairam Tyagi Etc Vs. Mamanchand Ratilal Agarwal and Others | effect under the provisions of sub.-s. 2. We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 of 1972.6. The second submission of the learned counsel for the appellant was that the decision of the executing Court in Miscellaneous Application No. 597 of 1970 declaring the decree to be a nullity separated as res judicata between the parties. The learned counsel relied upon the following observations of this Court in Mathura Prasad Bajoo Jaiswal &ors. v. Dessibai N.B. Jeejeebhoy(1) :"The matter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11 Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against the appellant. The matter becomes clear if certain observations made earlier in the very judgment are considered. They are:"A question relating to the Jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, lin our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise".7. In that case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission. | 0[ds]The effect of the pro visions of the Amending Act appear to us lo be very clear. Under s. 3 of the unamended Act, a notification could be issued extending a State Legislation to a Cantonment area with effect from the date of the notification. As a result of the introduction of sub.-s. 2 of s. 3 the notification can be given effect from an anterior date or a future date, but it cannot be made effective from a date earlier than the commencement of the State Legislation or the establishment of the Cantonment or the commencement of the Cantonment (Extension of Rent Control Laws) Act, 1957. Sub.-s. 3 is merely consequential to sub.-s. 2 in that it provides that a State Legislation when extended to a Cantonment area from an anterior date, such legislation is to stand extended with all the amendments to such State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come in to force. Sub-.s. 4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled. One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regulation of house accommodation for the time being in force in the State in which such Cantonment is situated. In other words the decree or order must have been made by the wrong application of the State legislation to the Cantonment area. If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area, it shall be deemed, with effect from the date of the notification, to have been properly made under the relevant provisions of the State Legislation.We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 ofmatter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against thethat case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity asthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission. | 0 | 3,472 | 1,229 | ### Instruction:
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effect under the provisions of sub.-s. 2. We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 of 1972.6. The second submission of the learned counsel for the appellant was that the decision of the executing Court in Miscellaneous Application No. 597 of 1970 declaring the decree to be a nullity separated as res judicata between the parties. The learned counsel relied upon the following observations of this Court in Mathura Prasad Bajoo Jaiswal &ors. v. Dessibai N.B. Jeejeebhoy(1) :"The matter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11 Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against the appellant. The matter becomes clear if certain observations made earlier in the very judgment are considered. They are:"A question relating to the Jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, lin our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise".7. In that case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission.
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State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come in to force. Sub-.s. 4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled. One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regulation of house accommodation for the time being in force in the State in which such Cantonment is situated. In other words the decree or order must have been made by the wrong application of the State legislation to the Cantonment area. If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area, it shall be deemed, with effect from the date of the notification, to have been properly made under the relevant provisions of the State Legislation.We see no justification for confining the applicability of sub.-s. 4 to cases where notifications are issued with retrospective effect under sub.-s. 2. Sub.-s. 4 in terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view sub.-s. 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, 4 sub .- s. 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957. as amended by Act 22 ofmatter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression the matter in issue in s. 11Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( res judicata, for a rule of procedure cannot supersede the law of the land.In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against thethat case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act , 1947. The application was rejected on the ground that the Act did not apply to open land let for construction. The view was confirmed by the High Court. Later in another case, the view taken by the High Court was over-ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent. The lower Courts and the High Court held that the previous decision operated as res judicata between the parties. The Supreme Court reversed the view of the lower courts and the High Court. It was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The situation in the present case is analogous. The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity asthe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. As pointed out by this Court in Mathura Prasad Bajoo Jaiswal &Ors. I v. Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature. We, therefore, see no substance in the second submission.
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Oil & Natural Gas Corporation Limited Vs. Soconord Octg & Another | provision of liquidated damages has been made in the contract, in the event of breach by one of the parties, such clause has to be read covering all types of breaches although parties may not have intended and provided for compensation in express terms for all types of breaches."The judgment is a complete answer on this point.47. Mr.Malik then contended that damages on account of the foreign exchange fluctuation are not included in clause 13.9.48. There are two answers to this contention. Firstly, it would follow then that the ceiling imposed by the liquidated damages clause applies only in respect of the damages referred to therein. This is in view of the fact that clause 13.9 does not exclude a claim for damages on any other ground. In fact clause 13.9 expressly provides that the damages are only in addition to damages leviable in terms of clause 14. Clause 14 in turn is wide enough to include a claim for damages on account of foreign exchange fluctuation. Clause 14 confers certain rights upon the ONGC in the event of Soconord failing to deliver the material within the period fixed for such delivery. Clause 14 however, expressly provides that those rights are "without prejudice to any other right or remedy available to it (i.e. ONGC) to recover damages for breach of the supply contract." Clause 14 entitled ONGC to levy liquidated damages without prejudice to any other right or remedy available to ONGC to recover damages for breach of the supply contract.49. Thus, once it is held that damages on account of foreign exchange fluctuation can be claimed, neither clause 13.9 nor clause 14 prevented ONGC from claiming the same in addition to the liquidated damages stipulated in clause 14.50. The impugned judgment in so far as it remits the award on this ground is, therefore, set aside.51. Mr.Malik submitted that in any event, ONGC was entitled to claim damages only from its agent M/s.PSL Pipe Coaters Pvt. Ltd. (hereinafter referred to as M/s.PSL) - Coating Contractor and not from Soconord. He relied upon the letters dated 22nd June 1992 and 10th July 1992 addressed by ONGC to M/s.PSL. The submission is not well founded.52. The learned Judge rightly held that the directions contained in the letters by ONGC were based on the promise made by Soconord that the goods would be available for loading on the due date and, therefore, in the event of M/s.PSL delaying the deployment of the vessel on the due date, they would be liable for damages. These letters therefore, put M/s.PSL to notice that it would be liable for delay in deploying the vessels if the goods were made available by Soconord on the due dates. In other words ONGC had by these letters informed M/s.PSL to deploy the vessels on the dates on which Soconord had stated that the material would be ready in Antwerp and in Italy viz., on 14th July 1992 and 19th July 1992. On the basis that Soconord would deliver the materials on the said dates, ONGC informed PSL that it would be liable for damages if it did not make available the vessel on those dates. The learned Judge, therefore, rightly came to the conclusion that M/s.PSLs liability obviously would be only in the event of goods being made available by the Soconord on the said dates. As the goods were not made available by Soconord on these dates, Soconord was held liable for damages. There was no question, in such circumstances, of M/s.PSL being held liable. It would amount to ONGC holding its own agent liable for damages on account of a breach committed by Soconord. The learned Judge, accordingly, rightly refused to set aside the award on the ground that these letters had not been considered by the Umpire. The judgment in this regard is upheld.53. Mr.Malik lastly submitted that the ONGCs claim is barred by limitation.54. This objection was not raised either in the arbitration proceedings or in the arbitration petition. In view of the judgment of the Division Bench of this Court in ONGC vs. Comex Services SA (supra), it is not open therefore, to Soconord to raise the same before us.55. Mr.Malik however, relied upon a judgment of a learned single Judge of this Court in Sealand Shipping and Export Pvt. Ltd. vs. Kinship Services (India) Pvt. Ltd. 2011 (5) Bom.C.R. 572 to contend that the point of limitation even if not taken in the arbitration petition, can be taken at the hearing of the petition to challenge the award. We express no views about the correctness of the judgment. In that case however, as noted by the learned Judge, a plea had at least been raised before the Arbitral Tribunal.56. It would be unfair to permit Soconord to raise this contention in the appeal for the first time. The question of limitation in this case is a mixed question of law and of fact. To permit Soconord to raise the contention in appeal would be unfair to ONGC, as it would be deprived the opportunity of meeting the case on facts. The plea of limitation is raised on the basis that ONGC calculated the foreign exchange rate as on 20th July, 1992 but filed the counter claim on 13th September, 1995.57. Even on merits this contention is not well founded. The date of conversion of the foreign exchange is not necessarily the starting point of limitation. The date of conversion does not itself give rise to a cause of action in favour of a party suffering by the breach. In the present case, the goods were admittedly delivered to ONGC only by 23rd September, 1992. The ONGC was not bound to file the proceedings on 20th July, 1992. It could have waited till the entire consignment was delivered before filing the claim. This is at least one interpretation of the contract especially of clause 12.1 thereof. The plea of limitation in any case is not an open and shut case in Soconords favour. | 1[ds]14. It is impossible to hold that the view taken by the Umpire is not a possible one. Indeed, it appears to be the correct view. The least that must be said is that the view taken by the Umpire was a possible one. It would, in any event, therefore, not be open to this Court to substitute its view, assuming it had another view, for the Umpires view. The learned single Judge has also come to the same conclusion in this regard.The learned Judge therefore, rightly held that the finding recorded by the Umpire that time was of the essence of the contract is a finding of fact arrived at after taking into consideration all relevant evidence and provisions of law, including the judgment of the Supreme Court in Hind Construction Contractors Vs. State of Maharashtra A.I.R. 1979 S.C. 729. The learned Judge rightly found that the finding recorded by the learned Umpire is a possible finding and, therefore, cannot be interfered with.15. The contention that the award ought to be set aside on the ground that the Umpire wrongly came to the conclusion that time was of the essence of the contract is, therefore, rejected.Soconord contended that even assuming that there was a delay on its part in arranging for the delivery of the material FOB at the ports, ONGC/ ONGCs coating contractor failed to perform their reciprocal promise of making the ship available before 20th July 1992 for effecting such delivery. Thus, without the ship being there, the FOB delivery at the two ports would be physically impossible. Soconord, therefore, claimed to have been discharged from performing its obligation in view of section 54 of the Indian Contract Act.The learned Umpire came to the conclusion that the delay in arrival of the ship at Antwerp on 6th August 1992 was due to the failure on the part of Soconord to give due intimation of slippage and, therefore, ONGC/ its Coating Contractor cannot be faulted for the delayed arrival of the ship at Antwerp. The learned Umpire came to this conclusion upon a detailed consideration of the rival contentions. The finding of fact which warrants no interference justifies the conclusion.18. The learned Umpire rightly accepted ONGCs contention that even assuming that there was an implied obligation on its part to make the ship available before 20th July 1992, the same did not constitute a reciprocal promise in view of clause 11 of the GCSC agreement. Clause 11 entitled ONGC to store the material at the suppliers stock yard/ warehouse at the delivery site. Thus, Soconords obligation to keep the goods ready for shipment on 20th July 1992 was not dependent upon the performance by ONGC of its obligation to make the ship available before 20th July 1992. Soconord was not concerned whether ONGC stored the material or shipped it. The question of a reciprocal obligation really did not arise.19.Mr.Malik, the learned Counsel appearing on behalf of the petitioner contended that under an FOB contract, the ship must also be kept ready.We will assume that to be so. However, in view of the finding of the learned Umpire, based on clause 11 of the GCSC, it would make no difference. Clause 11 contemplated a situation where the ship may not be available and provided that in such a situation, the ONGC would be entitled to have the goods stored at the stock yard/ warehouse. The criticism against the learned Umpire on the ground that he had failed to take into consideration the legal incidence of an FOB contract is, therefore, uncalled for.20. The learned Umpire did not stop there. He answered the question under consideration in favour of ONGC, also in view of the clause 13.8 of the GCSC, the Minutes of the kick off meeting held on 30th March 1992 and the evidence. Based on the same, the Umpire justifiably came to the conclusion that Soconord had failed to give ONGC intimation of slippage as required by clause 13.8. The notice of slippage was important for it takes time for a party to arrange a ship. The minutes of the kick off meeting required Soconord to give ONGC the production schedule within three weeks. Soconord however, informed ONGC that the material would be ready at Antwerp only by 14th July 1992 and in Italy by 20th July 1992. After analysing the correspondence and the evidence, the learned Umpire found this information to be incorrect. Based on the evidence the learned Umpire came to the conclusion that the manufacturing activities were lagging far behind and ultimately Soconord by its letter dated 20th July 1992 admitted that it was not in a position to deliver the material by 20th July 1992 and that the material would be ready for loading at both the ports only on 30th July 1992.21. It is evident on a plain reading of the award that the learned Umpires conclusion was arrived at after taking every relevant aspect into consideration. The provisions of the contract were construed and analysed, the evidence and correspondence was also considered. It is not open for this court tothe evidence. The view taken by the Umpire is not only a possible one but in fact appears to be the correct one.The conclusion regarding Point "B" was, therefore, rightly in favour of the ONGC.The ONGC computed the delay to be 19 days i.e. three weeks from 5th July 1992 to 24th July 1992. 5th July 1992 was the date on which ONGC contended that the goods ought to have been kept ready at Antwerp to meet the contractual completion date viz., 20th July 1992. According to ONGC 24th July 1992 was the date of readiness of goods as certified in the Release Note issued by EILONGC Inspectors. Accordingly, the liquidated damages were levied by ONGC in accordance with clause 14(a)(1) of the GCSC. Soconord on the other hand contended that the scheduled date for completion of delivery was 20th July 1992. ONGC, therefore, was not entitled to consider 5th July 1992 to be the date of commencement, as that would constituterewriting the contract.The contract stipulates 20th July 1992 to be the date for delivery.23. The learned Umpire rejected Soconords contention holding that ONGC had not artificially carried the date of keeping the goods ready backward to 5th July 1992 and that the same did not amount torewriting the contract.It is difficult to interfere with the findings of the learned Umpire.24. It is however, not necessary to consider this aspect any further. As noted in the award, the issue is academic as the ONGC had raised the claim for compensation due to delay on the part of Soconord on the basis of the loss suffered by it on account of foreign exchange fluctuation only. The issue, therefore, really is whether the claim for loss on account of fluctuation in the foreign exchange rate is maintainable or not25. This, therefore, brings us to last point for consideration determined by the learned Umpire.Two aspects arose for the consideration of the learned Umpire. The first was, whether the loss arising out of foreign exchange fluctuation can be claimed under section 73 of the Indian Contract Act and the second was whether the computation of the loss by ONGC was correct There are two further general aspects viz., the points on which the learned Judge remitted the award which we will deal with subsequently.27. As regards the first aspect viz., whether the loss on account of foreign exchange rate fluctuation can be claimed under section 73 of the Indian Contract Act, Soconord contended that the same cannot be considered to be a direct loss that had naturally arisen in the usual course of things from the breach on its part or a loss which the parties knew, when they made the contract, to be likely to result from its breach. The claim, therefore, Soconord contended is for remote damages, which cannot be granted under section 73 of the Indian Contract Act.28. The learned Umpire firstly held that there is no absolute rule that loss resulting fromrevaluation of currencies are always too remote in law to berecovered. The learned Umpire rightly held that Section 73 does not bar a claim for compensation for loss or damages caused on account of the foreign exchange fluctuation. In other words, the loss on account of the foreign exchange fluctuation is not excluded from the ambit of section 73 of the Indian Contract Act. The plain language of Section 73 does not support a view to the contrary. There is no reason or justification to read such a limitation into the section either. A party who suffers a loss on account of the fluctuation in the rate of exchange due to the breach of a contract is entitled to claim the same under section 73 if he establishes that the same naturally arose in the usual course of things from such breach and/or which the parties knew, when they made the contract that loss to be likely to result from the breach of it. Whether these ingredients are fulfilled or not would depend upon the facts of each case. In Aruna Mills Limited vs. Dhanrajmal, (1968) 2 WLR 101, the Court rejected the contention that there is a special rule that losses resulting fromrevaluation of currencies are always too remote in law to berecoverable. The learned Judge held that there was no such rule. We are entirely in agreement with this view. Our attention has not been invited to any authority to the contrary. We see no reason on principle to read such a limitation into Section 73. We hasten to add that even if there is authority to the contrary, absent a binding authority, it would make no difference. The Umpire was entitled to prefer one view to another. An award cannot be set aside even if the Court prefers the other view. The judgment was referred to in the award. The learned Umpire rightly held such a claim to fall within the ambit of section 73.29. The learned Umpire rejected Soconords contention based on clause 4.1 of the main contract and clauses 12.1 and 12.3 of the GCSC under which the price was payable by ONGC to Soconord in foreign exchange (Belgian Francs). It is not possible to interfere with the decision that these clauses by themselves do not mean that the fluctuation in foreign exchange rate is irrelevant and that whether the loss arising on account thereof would be covered or not would depend upon several factors. The question to be determined upon an analysis of these factors is, whether such loss is a direct loss that had naturally arisen in usual course of things from the breach on the part of Soconord or whether it was a loss which the parties knew when they entered into the contract, to be likely to result on its breach. The learned Umpire, therefore, posed the correct question and proceeded to answer it.30. The learned Umpire answered this question in favour of ONGC also upon a consideration of the terms of the agreement and the facts of the case including the correspondence between the parties. The factors that persuaded the learned Umpire to hold that the claim falls within the ambit of section 73 are as followsThat there was a delay in delivery of goods was admitted. The finding of the learned Umpire is that Soconord was responsible for the same. Had the goods been delivered by the scheduled date, the payment could have been made at that time. The time for payment, however, also got delayed due to the delay in the delivery of the goods. The rate of foreign exchange fluctuated in the meantime. The loss caused thereby was on account of the delay for which Soconord was responsible.(B) In this case, the Umpire came to the conclusion that the loss on account of foreign exchange fluctuation was maintainable. In arriving at this conclusion, he held that in international commercial transactions between an Indian purchaser and a foreign supplier, it would be common knowledge that loss due to foreign exchange fluctuation can arise. That is a reasonable inference. The learned Umpire was entitled to draw that inference. It would be absurd to suggest that evidence is required to prove that parties are aware that the rate between different currencies fluctuates on a regular, indeed daily basis. Judicial notice of this fact is justified. If judicial notice of such a fact is impermissible, it is difficult to imagine a case where it would be permissible.(C) The contract between the parties is an international commercial transaction. The presumption would therefore, apply in this case. The learned Umpire also construed the terms of the contract in arriving at this conclusion. The portion of the price payable to Soconords Indian agent pegged the payment to the exchange rate prevailing on 21st March 1992. Whether it was at the instance of the agent or not, the payment to the agent was protected against any foreign exchange fluctuation. The provision for payment to Soconord itself was however, not pegged at the exchange rate fixed on 21st March 1992 or on any other date. The Umpire considered the effect of these terms and came to the conclusion that the aspect of foreign exchange fluctuation was present to the minds of parties when the contract was made and that the foreign exchange rate fluctuation was treated as relevant. The Umpire further concluded on the basis of these terms that the parties had agreed that the foreign exchange rate fluctuation would be taken into account while making payment of the price to Soconord. This is certainly a reasonable inference. It is a possible view with which no interference is warranted in a proceeding to challenge an award. It is evident, therefore, that not merely on the basis of common knowledge in the trade but also from the terms and conditions of the contract, the parties were not only aware of the possibility of there being a foreign exchange fluctuation but were conscious of the same and considered the same to be a relevant factor.The learned Umpire rightly rejected Soconords contention based on the fact that ONGC could have made payment for the Antwerp goods upon their shipment. ONGC could have but was not bound to. This is clear from clause 12 of the GCSC. The learned Umpire held that normally payment would be released on completion of delivery of the entire material on 20th July 1992 under the terms of contract. Further, Soconord had delayed the delivery of the goods. ONGC had in fact by a letter dated 7/10th August 1992 addressed to State Bank of India extended the validity of the letter of credit but on the condition that partial payment would be permissible only after full supply of material from the port at Antwerp and the part supply of the material from Italian port was shipped and invoiced and duly certified by ONGCs representative. The same indicated ONGCs intention not to release any payment till the entire quantity of the material was shipped, invoiced and certified by the representative of ONGC. In this view of the matter the award cannot be challenged on this ground.k contended that the claim for damages was barred as ONGC had while extending the time for delivery not reserved its right to claimdamages. The learned Judge in his judgment dated 8th February 2002 had held that the Umpire had not taken into consideration the provisions of section 55 of the Contract Act ; the failure to do so amounted to excluding from consideration the relevant law, which in turn amounted to a breach of the rules of natural justice ; before recording a finding that ONGC was entitled to claim damages, the Umpire was bound to consider the provisions of section 55 of the Indian Contract Act and that section 55 of the Indian Contract Act stipulates conditions to be satisfied before a person can claim damages under section 73 of the Contract Act for breach of the contract. The learned Judge held that the Umpire had failed to take into consideration the provisions of section 55 although thethereof was alleged by Soconord. The learned Judge observed that while Soconord claims that no notice under section 55 was given, ONGC submitted that the requisite notice was given. The learned Judge held that this dispute ought to be considered by the Umpire. In view of this finding, the learned Judge did not consider the other contentions and set aside the award and remitted the same for aconsideration by the Umpire.35. The learned Judge wrongly came to the conclusion that the Umpire had not considered the evidence relating to the issuance of notice by ONGC reserving the right to claim damages. It is difficult to understand how the learned Judge could have made this observation in view of the specific findings and observations of the learned Umpire in thewe have mentioned earlier the award specifically refers to the telex. The telex is crystal clear. We are unable to understand how the learned Judge could possibly have come to the conclusion that the Umpire had failed to take into consideration the provisions of section 55 of the Contract Act and whether or not the requisite notice had been given. Merely because section 55 was not specifically referred to in the award, it would make no difference. It would be absurd on our part to even think that the learned Umpire was unaware of the provisions of section 55 of the Contract Act merely because he failed to mention expressly in words and figures the provisions of section 55 of the Indian Contract Act. Neither Mr.Malik nor Mr.Singhania had any answer to this. They were unable to support the observations of the learned Judge in this regard. The judgment dated 8th February 2002 is in this regard, therefore, overruled.Mr.Malik fairly admitted that this point was not taken in the petition under section 30. The petitioner was therefore, not entitled to raise this point even before the learned single Judge. Much less is it entitled to raise the same in appeal. Mr.Ghogres reliance upon the judgment of the Division Bench of this Court in O.N.G.C. vs. Comex Services SA, 2003(5) Bom.C.R. 146 is wellthat this judgment must be read to mean that a party ought not to be taken by surprise and that if the petitioner puts the respondent to notice that he intends raising a particular point, the Court must allow it to do so.We are unable to agree. We are bound by the judgment. There is nothing in the judgment that supports this contention.38.Mr.Malik then submitted that the point had been taken in the pleadings before the Arbitral Tribunal and that it had even been dealt with by the learned single Judge.We will for the purpose of this judgment presume that to be so. Even assuming that the appellant is entitled to raise this issue, it would make no difference as we find the submission to be totally unfounded.Mr.Maliks submission proceeds on the erroneous basis that the notice under the last paragraph of section 55 requires either the nature or the quantum to be specified.It does not. The plain language of section 55 does not stipulate such a requirement. There is nothing that persuades us to read such a requirement in section 55. We are in fact of a view to the contrary. It is sufficient if, while extending time at the request of the party in breach, the other party merely reserves its right generally to claim damages on account of the delay.Mr.Maliks submission, if accepted, would lead to several practical difficulties. The extension of time to perform results in the contract continuing. Mr. Maliks submission, if accepted would require the party extending the contract to spend considerable time, first assessing all aspects of damages that it is likely to incur, including the nature and quantum thereof, specifying the same in a notice and then extending the contract. The entire purpose of extension would be defeated. Further, implementation of the contract would be considerably delayed. Indeed, such a view may well result in the party refusing to extend the contract for fear of having omitted to mention and specify its rights. The Legislature obviously, therefore, did not consider it necessary to require the party extending the contract to specify the details regarding the damage that it reserved to itself to claim.42. Our view would not prejudice the party in breach in any manner. A notice extending time reserving the right to claim damages, would not entitle the party extending the time to claim damages, which it is otherwise not entitled to in law. The party in breach, therefore, cannot be prejudiced by the notice extending the time subject to the claim for damages not specifying the nature or the extent of damages.43. This brings us to another point. In the impugned judgment dated 14th January 2011, the learned Judge observed that the Umpire had held in para 17 of the award that the amount of unliquidated damages claimed was higher than the amount of liquidated damages stipulated in the contract. The learned Judge held that the Umpire had not considered the aspect of liquidated damages and had proceeded to calculate the amount of unliquidated damages and had awarded thereferring to the judgment of the Supreme Court in the case of Sir Chunilal V. Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in A.I.R. 1962 S.C. 1314, the learned Judge held that once the amount of liquidated damages is mentioned nothing in excess can be awarded. It was further held that this aspect of the matter had not been considered by the Umpire. The learned Judge, therefore, remitted the matter back to the Umpire directing the learned Umpire to reconsider whether in view of the stipulations of the contract providing for liquidated damages, unliquidated damages can be awarded.44. Firstly, the amount claimed and the amount awarded are not in excess of the ceiling stipulated in the liquidated damages clauses. The finding of the learned Judge is therefore, factually incorrect.45. Further, considering the provisions of the contract, the question raised does not even arise. The Supreme Court has not held that once there is liquidated damages clause in respect of a particular claim, damages cannot be awarded although they arise on account of another claim albeit under the same contract. The parties can always agree to the liquidated damages clause only in respect of certain types of claims arising under a contract. Such clauses for liquidated damages, may or may not include all claims for damages arising under a contract. The ceiling stipulated in the liquidated damages clause will not apply to a claim for damages on account of a breach or conduct that falls outside ambit of the liquidated damages clause. For instance, a liquidated damages clause may stipulate a ceiling on account of delay in delivery. Such a clause would not prevent a party from claiming damages on account of the goods supplied under the contract being defective.46. Mr.Ghogres reliance upon the judgment of the Supreme Court reported in 2009 (10) S.C.C. 63 (Steel Authority of India Ltd. Vs. Gupta Brother Steel Tubes Ltd.) is well founded.There are two answers to this contention. Firstly, it would follow then that the ceiling imposed by the liquidated damages clause applies only in respect of the damages referred to therein. This is in view of the fact that clause 13.9 does not exclude a claim for damages on any other ground. In fact clause 13.9 expressly provides that the damages are only in addition to damages leviable in terms of clause 14. Clause 14 in turn is wide enough to include a claim for damages on account of foreign exchange fluctuation. Clause 14 confers certain rights upon the ONGC in the event of Soconord failing to deliver the material within the period fixed for such delivery. Clause 14 however, expressly provides that those rights are "without prejudice to any other right or remedy available to it (i.e. ONGC) to recover damages for breach of the supply contract." Clause 14 entitled ONGC to levy liquidated damages without prejudice to any other right or remedy available to ONGC to recover damages for breach of the supply contract.49. Thus, once it is held that damages on account of foreign exchange fluctuation can be claimed, neither clause 13.9 nor clause 14 prevented ONGC from claiming the same in addition to the liquidated damages stipulated in clause 14.50. The impugned judgment in so far as it remits the award on this ground is, therefore, set aside.51. Mr.Malik submitted that in any event, ONGC was entitled to claim damages only from its agent M/s.PSL Pipe Coaters Pvt. Ltd. (hereinafter referred to as M/s.PSL)Coating Contractor and not from Soconord. He relied upon the letters dated 22nd June 1992 and 10th July 1992 addressed by ONGC to M/s.PSL. The submission is not well founded.52. The learned Judge rightly held that the directions contained in the letters by ONGC were based on the promise made by Soconord that the goods would be available for loading on the due date and, therefore, in the event of M/s.PSL delaying the deployment of the vessel on the due date, they would be liable for damages. These letters therefore, put M/s.PSL to notice that it would be liable for delay in deploying the vessels if the goods were made available by Soconord on the due dates. In other words ONGC had by these letters informed M/s.PSL to deploy the vessels on the dates on which Soconord had stated that the material would be ready in Antwerp and in Italy viz., on 14th July 1992 and 19th July 1992. On the basis that Soconord would deliver the materials on the said dates, ONGC informed PSL that it would be liable for damages if it did not make available the vessel on those dates. The learned Judge, therefore, rightly came to the conclusion that M/s.PSLs liability obviously would be only in the event of goods being made available by the Soconord on the said dates. As the goods were not made available by Soconord on these dates, Soconord was held liable for damages. There was no question, in such circumstances, of M/s.PSL being held liable. It would amount to ONGC holding its own agent liable for damages on account of a breach committed by Soconord. The learned Judge, accordingly, rightly refused to set aside the award on the ground that these letters had not been considered by the Umpire. The judgment in this regard is upheld.53. Mr.Malik lastly submitted that the ONGCs claim is barred by limitation.54. This objection was not raised either in the arbitration proceedings or in the arbitration petition. In view of the judgment of the Division Bench of this Court in ONGC vs. Comex Services SA (supra), it is not open therefore, to Soconord to raise the same before us.55. Mr.Malik however, relied upon a judgment of a learned single Judge of this Court in Sealand Shipping and Export Pvt. Ltd. vs. Kinship Services (India) Pvt. Ltd. 2011 (5) Bom.C.R. 572 to contend that the point of limitation even if not taken in the arbitration petition, can be taken at the hearing of the petition to challenge the award. We express no views about the correctness of the judgment. In that case however, as noted by the learned Judge, a plea had at least been raised before the Arbitral Tribunal.56. It would be unfair to permit Soconord to raise this contention in the appeal for the first time. The question of limitation in this case is a mixed question of law and of fact. To permit Soconord to raise the contention in appeal would be unfair to ONGC, as it would be deprived the opportunity of meeting the case on facts. The plea of limitation is raised on the basis that ONGC calculated the foreign exchange rate as on 20th July, 1992 but filed the counter claim on 13th September, 1995.57. Even on merits this contention is not well founded. The date of conversion of the foreign exchange is not necessarily the starting point of limitation. The date of conversion does not itself give rise to a cause of action in favour of a party suffering by the breach. In the present case, the goods were admittedly delivered to ONGC only by 23rd September, 1992. The ONGC was not bound to file the proceedings on 20th July, 1992. It could have waited till the entire consignment was delivered before filing the claim. This is at least one interpretation of the contract especially of clause 12.1 thereof. The plea of limitation in any case is not an open and shut case in Soconords favour. | 1 | 11,726 | 5,193 | ### Instruction:
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provision of liquidated damages has been made in the contract, in the event of breach by one of the parties, such clause has to be read covering all types of breaches although parties may not have intended and provided for compensation in express terms for all types of breaches."The judgment is a complete answer on this point.47. Mr.Malik then contended that damages on account of the foreign exchange fluctuation are not included in clause 13.9.48. There are two answers to this contention. Firstly, it would follow then that the ceiling imposed by the liquidated damages clause applies only in respect of the damages referred to therein. This is in view of the fact that clause 13.9 does not exclude a claim for damages on any other ground. In fact clause 13.9 expressly provides that the damages are only in addition to damages leviable in terms of clause 14. Clause 14 in turn is wide enough to include a claim for damages on account of foreign exchange fluctuation. Clause 14 confers certain rights upon the ONGC in the event of Soconord failing to deliver the material within the period fixed for such delivery. Clause 14 however, expressly provides that those rights are "without prejudice to any other right or remedy available to it (i.e. ONGC) to recover damages for breach of the supply contract." Clause 14 entitled ONGC to levy liquidated damages without prejudice to any other right or remedy available to ONGC to recover damages for breach of the supply contract.49. Thus, once it is held that damages on account of foreign exchange fluctuation can be claimed, neither clause 13.9 nor clause 14 prevented ONGC from claiming the same in addition to the liquidated damages stipulated in clause 14.50. The impugned judgment in so far as it remits the award on this ground is, therefore, set aside.51. Mr.Malik submitted that in any event, ONGC was entitled to claim damages only from its agent M/s.PSL Pipe Coaters Pvt. Ltd. (hereinafter referred to as M/s.PSL) - Coating Contractor and not from Soconord. He relied upon the letters dated 22nd June 1992 and 10th July 1992 addressed by ONGC to M/s.PSL. The submission is not well founded.52. The learned Judge rightly held that the directions contained in the letters by ONGC were based on the promise made by Soconord that the goods would be available for loading on the due date and, therefore, in the event of M/s.PSL delaying the deployment of the vessel on the due date, they would be liable for damages. These letters therefore, put M/s.PSL to notice that it would be liable for delay in deploying the vessels if the goods were made available by Soconord on the due dates. In other words ONGC had by these letters informed M/s.PSL to deploy the vessels on the dates on which Soconord had stated that the material would be ready in Antwerp and in Italy viz., on 14th July 1992 and 19th July 1992. On the basis that Soconord would deliver the materials on the said dates, ONGC informed PSL that it would be liable for damages if it did not make available the vessel on those dates. The learned Judge, therefore, rightly came to the conclusion that M/s.PSLs liability obviously would be only in the event of goods being made available by the Soconord on the said dates. As the goods were not made available by Soconord on these dates, Soconord was held liable for damages. There was no question, in such circumstances, of M/s.PSL being held liable. It would amount to ONGC holding its own agent liable for damages on account of a breach committed by Soconord. The learned Judge, accordingly, rightly refused to set aside the award on the ground that these letters had not been considered by the Umpire. The judgment in this regard is upheld.53. Mr.Malik lastly submitted that the ONGCs claim is barred by limitation.54. This objection was not raised either in the arbitration proceedings or in the arbitration petition. In view of the judgment of the Division Bench of this Court in ONGC vs. Comex Services SA (supra), it is not open therefore, to Soconord to raise the same before us.55. Mr.Malik however, relied upon a judgment of a learned single Judge of this Court in Sealand Shipping and Export Pvt. Ltd. vs. Kinship Services (India) Pvt. Ltd. 2011 (5) Bom.C.R. 572 to contend that the point of limitation even if not taken in the arbitration petition, can be taken at the hearing of the petition to challenge the award. We express no views about the correctness of the judgment. In that case however, as noted by the learned Judge, a plea had at least been raised before the Arbitral Tribunal.56. It would be unfair to permit Soconord to raise this contention in the appeal for the first time. The question of limitation in this case is a mixed question of law and of fact. To permit Soconord to raise the contention in appeal would be unfair to ONGC, as it would be deprived the opportunity of meeting the case on facts. The plea of limitation is raised on the basis that ONGC calculated the foreign exchange rate as on 20th July, 1992 but filed the counter claim on 13th September, 1995.57. Even on merits this contention is not well founded. The date of conversion of the foreign exchange is not necessarily the starting point of limitation. The date of conversion does not itself give rise to a cause of action in favour of a party suffering by the breach. In the present case, the goods were admittedly delivered to ONGC only by 23rd September, 1992. The ONGC was not bound to file the proceedings on 20th July, 1992. It could have waited till the entire consignment was delivered before filing the claim. This is at least one interpretation of the contract especially of clause 12.1 thereof. The plea of limitation in any case is not an open and shut case in Soconords favour.
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or conduct that falls outside ambit of the liquidated damages clause. For instance, a liquidated damages clause may stipulate a ceiling on account of delay in delivery. Such a clause would not prevent a party from claiming damages on account of the goods supplied under the contract being defective.46. Mr.Ghogres reliance upon the judgment of the Supreme Court reported in 2009 (10) S.C.C. 63 (Steel Authority of India Ltd. Vs. Gupta Brother Steel Tubes Ltd.) is well founded.There are two answers to this contention. Firstly, it would follow then that the ceiling imposed by the liquidated damages clause applies only in respect of the damages referred to therein. This is in view of the fact that clause 13.9 does not exclude a claim for damages on any other ground. In fact clause 13.9 expressly provides that the damages are only in addition to damages leviable in terms of clause 14. Clause 14 in turn is wide enough to include a claim for damages on account of foreign exchange fluctuation. Clause 14 confers certain rights upon the ONGC in the event of Soconord failing to deliver the material within the period fixed for such delivery. Clause 14 however, expressly provides that those rights are "without prejudice to any other right or remedy available to it (i.e. ONGC) to recover damages for breach of the supply contract." Clause 14 entitled ONGC to levy liquidated damages without prejudice to any other right or remedy available to ONGC to recover damages for breach of the supply contract.49. Thus, once it is held that damages on account of foreign exchange fluctuation can be claimed, neither clause 13.9 nor clause 14 prevented ONGC from claiming the same in addition to the liquidated damages stipulated in clause 14.50. The impugned judgment in so far as it remits the award on this ground is, therefore, set aside.51. Mr.Malik submitted that in any event, ONGC was entitled to claim damages only from its agent M/s.PSL Pipe Coaters Pvt. Ltd. (hereinafter referred to as M/s.PSL)Coating Contractor and not from Soconord. He relied upon the letters dated 22nd June 1992 and 10th July 1992 addressed by ONGC to M/s.PSL. The submission is not well founded.52. The learned Judge rightly held that the directions contained in the letters by ONGC were based on the promise made by Soconord that the goods would be available for loading on the due date and, therefore, in the event of M/s.PSL delaying the deployment of the vessel on the due date, they would be liable for damages. These letters therefore, put M/s.PSL to notice that it would be liable for delay in deploying the vessels if the goods were made available by Soconord on the due dates. In other words ONGC had by these letters informed M/s.PSL to deploy the vessels on the dates on which Soconord had stated that the material would be ready in Antwerp and in Italy viz., on 14th July 1992 and 19th July 1992. On the basis that Soconord would deliver the materials on the said dates, ONGC informed PSL that it would be liable for damages if it did not make available the vessel on those dates. The learned Judge, therefore, rightly came to the conclusion that M/s.PSLs liability obviously would be only in the event of goods being made available by the Soconord on the said dates. As the goods were not made available by Soconord on these dates, Soconord was held liable for damages. There was no question, in such circumstances, of M/s.PSL being held liable. It would amount to ONGC holding its own agent liable for damages on account of a breach committed by Soconord. The learned Judge, accordingly, rightly refused to set aside the award on the ground that these letters had not been considered by the Umpire. The judgment in this regard is upheld.53. Mr.Malik lastly submitted that the ONGCs claim is barred by limitation.54. This objection was not raised either in the arbitration proceedings or in the arbitration petition. In view of the judgment of the Division Bench of this Court in ONGC vs. Comex Services SA (supra), it is not open therefore, to Soconord to raise the same before us.55. Mr.Malik however, relied upon a judgment of a learned single Judge of this Court in Sealand Shipping and Export Pvt. Ltd. vs. Kinship Services (India) Pvt. Ltd. 2011 (5) Bom.C.R. 572 to contend that the point of limitation even if not taken in the arbitration petition, can be taken at the hearing of the petition to challenge the award. We express no views about the correctness of the judgment. In that case however, as noted by the learned Judge, a plea had at least been raised before the Arbitral Tribunal.56. It would be unfair to permit Soconord to raise this contention in the appeal for the first time. The question of limitation in this case is a mixed question of law and of fact. To permit Soconord to raise the contention in appeal would be unfair to ONGC, as it would be deprived the opportunity of meeting the case on facts. The plea of limitation is raised on the basis that ONGC calculated the foreign exchange rate as on 20th July, 1992 but filed the counter claim on 13th September, 1995.57. Even on merits this contention is not well founded. The date of conversion of the foreign exchange is not necessarily the starting point of limitation. The date of conversion does not itself give rise to a cause of action in favour of a party suffering by the breach. In the present case, the goods were admittedly delivered to ONGC only by 23rd September, 1992. The ONGC was not bound to file the proceedings on 20th July, 1992. It could have waited till the entire consignment was delivered before filing the claim. This is at least one interpretation of the contract especially of clause 12.1 thereof. The plea of limitation in any case is not an open and shut case in Soconords favour.
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Smita Conductors Ltd Vs. Dinesh Engineering Corporation | would have been an acceptable arguemnt if EDC was manufacturing GE-gevernors itself. It is an admitted case that ESC manufactures its own governors and not GE-governors nor are they licensed to manufacture GE-governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE-governors. THe statutes of EDC vis-a-vis the writ petitioner will be the same in regard to the supply of spares to GE-governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE-governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE-governors on the sole ground that it does not manufacture governors by itself. 15. Here it is to be noted that substantial number of governors used in the locomotives of the Indian Railways are those manufactured by GE, therefore, the requirement of spare parts ae also substantial for replacement in these governors. Hence, the Board ought not to have created a monopoly in favour of the EDC. It is, however, open to the Railways if it comes to the genuine conclusion that the spare parts manufactured by the writ petitioner are not acceptable on the ground of sophistication, complexity and high degree of precision then certainly it is for the Railways or for that matter if the terms of offer are not acceptable for justifiable reasons, it will be open to the Railways to reject the offer of the writ petition. But then, none of the above form the basis for creating a monopoly in favour of the EDC. As held by the High Court, that creation of this monopoly in favour of the EDC is unreasonable and arbitrary with which we agree. 16. Coming to the second question involved in these appeals, namely, the reaction of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned senior counsel appearing for the EDC, drew out attention to a judgment of this Court in Sterling Computers Ltd. etc. v. M/s. M & N Publications Ltd. & Ors., 1993(1) SCC 445, which has held : "Under some special circumstance a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmcs, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive." 17. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, even since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-appplication of mind, hence, it has to be quashed as has been done by the High Court. 18. As stated above, so far as the tender dated 9.12.1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. however, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from the EDC without calling for tenders and considering the offers received on merits. | 0[ds]13. A perusal of the said letter shows that the Board adopted this policy leeping in mind the need to assure reliability and quality performance of the governor and its spare parts in the context of sophistication, complexity and high degree of precision associated with governors. It is in this background that in para (i) the letter states that the spare should be procured on proprietary basis from EDC. This policy proceedings on the hypothesis that there is no other supplier in the country who is competent enough to supply the spares required for the governors used by the Indian Railways without taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various Divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter dated 23.10.1992 suffers from the vice ofof mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter dated 23.10.1992 being in the nature of a policy decision, it is not open to courts to interfere since policy decision, it is not open to courts to interfere since policies are normally formulated by experts on the subjects and the courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does to mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter dated 23.10.1992, it is seen that the Railways took the decision to create a monopoly on proprietary basis as EDC on the ground that the sphere required by it for replacement in the governors used by the Railways required a high degree of sophistication, complexity and preorsion, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a governor which is used to control the speed in a diesel locomotive should be a qualify product which can adhere to the strict scrutiny/standards of the Railways, but the pertinent question is : has the Board taken into consideration the availability orof such characteristics in the spare parts supplied by the writ petitioner or, for the matter, was the Board above to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various Divisions of the Railways. A persual of the letter dated 23.10.1992 does not show that the Board was either aware of the existence of the writ petition or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of theis an admitted case that ESC manufactures its own governors and notnor are they licensed to manufactureAll and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares forTHe statutes of EDCthe writ petitioner will be the same in regard to the supply of spares toThis observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with theThat is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to theon the sole ground that it does not manufacture governors by itself.held by the High Court, that creation of this monopoly in favour of the EDC is unreasonable and arbitrary with which wesuch ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by thethe instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, even since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that thepolicy of the Board creating monopoly of EDC suffers from the vice ofof mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender dated 9.12.1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. however, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from the EDC without calling for tenders and considering the offers received on merits. | 0 | 4,034 | 1,156 | ### 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:
would have been an acceptable arguemnt if EDC was manufacturing GE-gevernors itself. It is an admitted case that ESC manufactures its own governors and not GE-governors nor are they licensed to manufacture GE-governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE-governors. THe statutes of EDC vis-a-vis the writ petitioner will be the same in regard to the supply of spares to GE-governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE-governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE-governors on the sole ground that it does not manufacture governors by itself. 15. Here it is to be noted that substantial number of governors used in the locomotives of the Indian Railways are those manufactured by GE, therefore, the requirement of spare parts ae also substantial for replacement in these governors. Hence, the Board ought not to have created a monopoly in favour of the EDC. It is, however, open to the Railways if it comes to the genuine conclusion that the spare parts manufactured by the writ petitioner are not acceptable on the ground of sophistication, complexity and high degree of precision then certainly it is for the Railways or for that matter if the terms of offer are not acceptable for justifiable reasons, it will be open to the Railways to reject the offer of the writ petition. But then, none of the above form the basis for creating a monopoly in favour of the EDC. As held by the High Court, that creation of this monopoly in favour of the EDC is unreasonable and arbitrary with which we agree. 16. Coming to the second question involved in these appeals, namely, the reaction of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned senior counsel appearing for the EDC, drew out attention to a judgment of this Court in Sterling Computers Ltd. etc. v. M/s. M & N Publications Ltd. & Ors., 1993(1) SCC 445, which has held : "Under some special circumstance a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmcs, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive." 17. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, even since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-appplication of mind, hence, it has to be quashed as has been done by the High Court. 18. As stated above, so far as the tender dated 9.12.1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. however, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from the EDC without calling for tenders and considering the offers received on merits.
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0
### Explanation:
by the Indian Railways without taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various Divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter dated 23.10.1992 suffers from the vice ofof mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter dated 23.10.1992 being in the nature of a policy decision, it is not open to courts to interfere since policy decision, it is not open to courts to interfere since policies are normally formulated by experts on the subjects and the courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does to mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter dated 23.10.1992, it is seen that the Railways took the decision to create a monopoly on proprietary basis as EDC on the ground that the sphere required by it for replacement in the governors used by the Railways required a high degree of sophistication, complexity and preorsion, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a governor which is used to control the speed in a diesel locomotive should be a qualify product which can adhere to the strict scrutiny/standards of the Railways, but the pertinent question is : has the Board taken into consideration the availability orof such characteristics in the spare parts supplied by the writ petitioner or, for the matter, was the Board above to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various Divisions of the Railways. A persual of the letter dated 23.10.1992 does not show that the Board was either aware of the existence of the writ petition or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of theis an admitted case that ESC manufactures its own governors and notnor are they licensed to manufactureAll and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares forTHe statutes of EDCthe writ petitioner will be the same in regard to the supply of spares toThis observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with theThat is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to theon the sole ground that it does not manufacture governors by itself.held by the High Court, that creation of this monopoly in favour of the EDC is unreasonable and arbitrary with which wesuch ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by thethe instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, even since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that thepolicy of the Board creating monopoly of EDC suffers from the vice ofof mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender dated 9.12.1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. however, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from the EDC without calling for tenders and considering the offers received on merits.
|
Tirumala Venkateswara Timber Andbamboo Firm Vs. Commercial Tax Officer, Rajahmundry | the title to the property must actually pass in the goods.As we have already pointed out, the third Explanation to S. 2 (1) (n) of the Act must be interpreted to mean that where there is in reality a transfer of property in the goods by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. It is therefore impossible to accept the contention put forward on behalf of the appellant that the Explanation has converted what, in fact, is not a sale into a sale for the purpose of assessment to sales-tax.4. It was contended on behalf of the appellant that in any event items Nos. 2 to 11 of the notice related to goods which the appellant had sent for sale to the commission agents and as the latter had already paid the sales-tax the appellant was not liable to be assessed to tax again on the same transaction as there was only one sale.As a matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principa1 who continues to be the owner of the goods and will therefore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legal relationship.For instance, in W. T. Lamb and Sons v. Goring Brick Co. Ltd., 1932 KB 710 there was an agreement in wringing by which certain manufacturers brick and other building materials appointed a firm of builders merchants "sole selling agent of all bricks and other materials manufactured at their works". The agreement was expressed to be for three years and afterwards continuous subject to twelve months notice by either party. While the agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent, and thereafter they effected sales to customers directly. It was held by the Court of Appeal that the agreement was one of vendor and purchaser and not one of principal and agent. The same principle is enunciated in Hutton v. Lippert, (1883) 8 AC 309 in which there was a contract between the defendant and E which in its terms purported to be one of guarantee or agency; that is to say the defendant guaranteed the sale of Es property in whole or by lots at a fixed price, E giving the defendant a power of attorney to deal with the property as he thought fit, and agreeing that he should receive any surplus over and above the fixed price as his commission on and recompense for the said guarantee. It was held by the Judicial Committee, upon a construction of the agreement, that the transaction was really a sale and that the defendant was liable to pay duty on his purchase money under Act II of 1863. At page 318 of the Report, Sir Robert P. Collier, who delivered the opinion of the Board, stated as follows :"Under these circumstances it appears to their Lordships that the Chief Justice was justified in saying that the effect of the transaction was to give Ekstein every right which a vendor could legally claim, and to confer upon the defendant every right which a purchaser could legally demand. Does it make any difference that the parties have called this transaction by the name of a guarantee ? It appears to their Lordships at because the parties have used this term guarantee in a sense which is unusual and not applicable to this case, - for Lippert really guaranteed nothing, - the nature of the transaction is not thereby changed; and because they have said that Lippert was to be entitled to whatever surplus or balance shall remain on the resale of portions of property, if any were resold, as commission and recompense for the said guarantee this expression does not convert him from a purchaser into an agent.5. It is manifest that the question as to whether the transactions in the present case are sales or contracts of agency is a mixed question of fact and law and must be investigated with reference to the material which the appellant might be able to place before the appropriate authority. The question is not one which can properly be determined in an application for a writ under Art. 226 of the Constitution.6. It was also submitted on behalf of the appellant that the third Explanation to S. 2 (1) (n) of the Act violated the guarantee under Art. 14 of the Constitution since the classification contemplated i. e., sales through commission agents who account fully for all collections made and sales through commission agents who do not account for collections, was not made on any intelligible differentia and had no rational relationship to the purpose of the statute.In our opinion, there is no substance in this argument as the classification is based upon an intelligible differentia and it has a rational relationship with the object sought to be achieved by the statute counsel for the appellant is therefore unable to make good his submission on this aspect of the case. | 0[ds]3. In our opinion the real object of the Explanation is to prevent the misuse by the assessee of the relationship of principal and agent for the purpose of evading tax. The first situation contemplated by the legislature is that covered by Cl. 2 (i) of Explanation III where the agent has sold the goods at one rate and passed on the sale proceeds to its principal at another rate. The second situation is where the agent has purchased the goods at one rate and has passed them on to the principal at another rate. The third situation is where the agent has not accounted to his principal for the entire collections or deductions made by him in the sales or purchases effected by him on behalf of his principal, and the fourth is where it appears that the agent has acted for a fictitious or non existentour opinion, there is no warrant for this argument. The real effect of the third Explanation is to impose the tax only when there was a transfer of title to the goods and not where there is a mere contract of agency. The Explanation says in effect that where there is in reality a transfer of property by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. In our opinion, the phrase "when the goods are transferred" in cls. (1) and (2) of Explanation III on a proper construction means "when title to the goods is transferred" and so construed it is impossible to say that the Explanation enlarges the scope of the mainis a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement.In other words, it is necessary for constituting a sale that there should be an agreement between the parties for the purpose of transferring title in the goods, that the agreement must be supported by money consideration and that as a result of the transaction the title to the property must actually pass in the goods.As we have already pointed out, the third Explanation to S. 2 (1) (n) of the Act must be interpreted to mean that where there is in reality a transfer of property in the goods by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. It is therefore impossible to accept the contention put forward on behalf of the appellant that the Explanation has converted what, in fact, is not a sale into a sale for the purpose of assessment toa matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principa1 who continues to be the owner of the goods and will therefore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legalquestion is not one which can properly be determined in an application for a writ under Art. 226 of theour opinion, there is no substance in this argument as the classification is based upon an intelligible differentia and it has a rational relationship with the object sought to be achieved by the statute counsel for the appellant is therefore unable to make good his submission on this aspect of the case. | 0 | 2,575 | 749 | ### 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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the title to the property must actually pass in the goods.As we have already pointed out, the third Explanation to S. 2 (1) (n) of the Act must be interpreted to mean that where there is in reality a transfer of property in the goods by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. It is therefore impossible to accept the contention put forward on behalf of the appellant that the Explanation has converted what, in fact, is not a sale into a sale for the purpose of assessment to sales-tax.4. It was contended on behalf of the appellant that in any event items Nos. 2 to 11 of the notice related to goods which the appellant had sent for sale to the commission agents and as the latter had already paid the sales-tax the appellant was not liable to be assessed to tax again on the same transaction as there was only one sale.As a matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principa1 who continues to be the owner of the goods and will therefore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legal relationship.For instance, in W. T. Lamb and Sons v. Goring Brick Co. Ltd., 1932 KB 710 there was an agreement in wringing by which certain manufacturers brick and other building materials appointed a firm of builders merchants "sole selling agent of all bricks and other materials manufactured at their works". The agreement was expressed to be for three years and afterwards continuous subject to twelve months notice by either party. While the agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent, and thereafter they effected sales to customers directly. It was held by the Court of Appeal that the agreement was one of vendor and purchaser and not one of principal and agent. The same principle is enunciated in Hutton v. Lippert, (1883) 8 AC 309 in which there was a contract between the defendant and E which in its terms purported to be one of guarantee or agency; that is to say the defendant guaranteed the sale of Es property in whole or by lots at a fixed price, E giving the defendant a power of attorney to deal with the property as he thought fit, and agreeing that he should receive any surplus over and above the fixed price as his commission on and recompense for the said guarantee. It was held by the Judicial Committee, upon a construction of the agreement, that the transaction was really a sale and that the defendant was liable to pay duty on his purchase money under Act II of 1863. At page 318 of the Report, Sir Robert P. Collier, who delivered the opinion of the Board, stated as follows :"Under these circumstances it appears to their Lordships that the Chief Justice was justified in saying that the effect of the transaction was to give Ekstein every right which a vendor could legally claim, and to confer upon the defendant every right which a purchaser could legally demand. Does it make any difference that the parties have called this transaction by the name of a guarantee ? It appears to their Lordships at because the parties have used this term guarantee in a sense which is unusual and not applicable to this case, - for Lippert really guaranteed nothing, - the nature of the transaction is not thereby changed; and because they have said that Lippert was to be entitled to whatever surplus or balance shall remain on the resale of portions of property, if any were resold, as commission and recompense for the said guarantee this expression does not convert him from a purchaser into an agent.5. It is manifest that the question as to whether the transactions in the present case are sales or contracts of agency is a mixed question of fact and law and must be investigated with reference to the material which the appellant might be able to place before the appropriate authority. The question is not one which can properly be determined in an application for a writ under Art. 226 of the Constitution.6. It was also submitted on behalf of the appellant that the third Explanation to S. 2 (1) (n) of the Act violated the guarantee under Art. 14 of the Constitution since the classification contemplated i. e., sales through commission agents who account fully for all collections made and sales through commission agents who do not account for collections, was not made on any intelligible differentia and had no rational relationship to the purpose of the statute.In our opinion, there is no substance in this argument as the classification is based upon an intelligible differentia and it has a rational relationship with the object sought to be achieved by the statute counsel for the appellant is therefore unable to make good his submission on this aspect of the case.
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### Explanation:
3. In our opinion the real object of the Explanation is to prevent the misuse by the assessee of the relationship of principal and agent for the purpose of evading tax. The first situation contemplated by the legislature is that covered by Cl. 2 (i) of Explanation III where the agent has sold the goods at one rate and passed on the sale proceeds to its principal at another rate. The second situation is where the agent has purchased the goods at one rate and has passed them on to the principal at another rate. The third situation is where the agent has not accounted to his principal for the entire collections or deductions made by him in the sales or purchases effected by him on behalf of his principal, and the fourth is where it appears that the agent has acted for a fictitious or non existentour opinion, there is no warrant for this argument. The real effect of the third Explanation is to impose the tax only when there was a transfer of title to the goods and not where there is a mere contract of agency. The Explanation says in effect that where there is in reality a transfer of property by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. In our opinion, the phrase "when the goods are transferred" in cls. (1) and (2) of Explanation III on a proper construction means "when title to the goods is transferred" and so construed it is impossible to say that the Explanation enlarges the scope of the mainis a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement.In other words, it is necessary for constituting a sale that there should be an agreement between the parties for the purpose of transferring title in the goods, that the agreement must be supported by money consideration and that as a result of the transaction the title to the property must actually pass in the goods.As we have already pointed out, the third Explanation to S. 2 (1) (n) of the Act must be interpreted to mean that where there is in reality a transfer of property in the goods by the principal to the agent and by the agent in his turn to the buyer, there are two transactions of sale. It is therefore impossible to accept the contention put forward on behalf of the appellant that the Explanation has converted what, in fact, is not a sale into a sale for the purpose of assessment toa matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principa1 who continues to be the owner of the goods and will therefore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legalquestion is not one which can properly be determined in an application for a writ under Art. 226 of theour opinion, there is no substance in this argument as the classification is based upon an intelligible differentia and it has a rational relationship with the object sought to be achieved by the statute counsel for the appellant is therefore unable to make good his submission on this aspect of the case.
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Union of India Vs. Brijlal Purshottamdas | the railway company which contracted to carry goods partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement (See Muschamp v. Lancaster Etc., Junction Rly. Co.), (1841) 8 M and W 421 = 151 ER l103. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before Section 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statutory footing.12. In Secretary of State v. Afzal Hussain, AIR 1920 Oudh 70, Lindsay, J. C held that the G.I.P. Rly, to which the goods had been delivered for carriage to a station on the O. and R. Railway was not liable for loss occuring on the O. and R. Railway due to the negligence of the latter railway. In D. H. Rly. Co. v. Jetmull Bhojraj, AIR 1956 Cal 390 the Calcutta High Court held that the G.I.P. Rly. to which the goods had been delivered for carriage to a station in the Darjeeling Himalayan Rly. was not responsible for the loss occurring on the latter railway. It may be mentioned that the actual decision in the Calcutta case was reversed by this Court on another point in Jetmull Bhojraj v. Darjeeling Himalayan Rly. Co. Ltd., 1963-2 SCR 832 = (AIR 1962 SC 1879 ). We think that the Oudh and the Calcutta cases were not correctly decided.They ignore the clear wording of Section 80. If it was the intention of the legislature to give a right of suit only against the administration on whose line the loss occurred it would have said so. The Section gives a right of suit against the administration to which the goods are delivered by the consignor and it matters not that the loss occurred while the goods were being carried by another administration and was due to the negligence of the latter.In Bengal and N. W. Rly. Co. v. Haji Mutsaddi, (1910) 7 Ind Cas 160 (All) the Allahabad High Court rightly held that the B. and N. W. Railway to which the goods were delivered for carriage to a station on the E. I. Railway was liable to pay compensation for the loss though the loss occurred on the latter Railway.13. The appellant argued that under S. 74 E the respondent must be deemed to have contracted with the Bengal Nagpur Railway only for the carriage of the goods over that railway line and that he had no remedy against the Southern Railway. The contention is based upon a misreading of Section74 E. The material part of that Section runs as follows :"When any animals or goods tendered to a railway administration for carriage by railway have been booked through over the railways of two or more railway administrations or over one or more railway administrations and one or more transport systems not belonging to any railway administration, the person tendering the animals or goods to the railway administration shall be deemed to have contracted with each one of the railway administrations or the owners of the transport system concerned, as the case may be that the provisions of Sections 73, 74 A, 74 B, 74 C, 74 D and 75 shall apply, so far as may be in relation to the carriage of such animals or goods in the same manner and to the same extent as they would have applied if the animals or goods had been carried over only one railway administration."14. It is to be observed that Section72 defines the general responsibility of a railway administration as a carrier of goods. Sections 73, 74A, 74B, 74C, 74D, and 75 contain special provisions limiting the general responsibility as defined in Section 72. The effect of Section 74E is that in the case of goods booked through over the railways of two or more administrations the consignor is deemed to have contracted with each one of them, that those special provisions shall apply, so far as may be in relation to the carriage of goods in the same manner and to the same extent as they would have applied if the goods had been carried over only one administration.In the present case, the goods were carried at owners risk rate over the railways of two administrations and having regard to Section 74E, the provisions of Ss. 74C (3) and Section 74D apply to each administration, as if the goods were carried at only one administration. In view of Sections 74C (3) and 74D the consignor can not recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration. If loss due to such negligence or misconduct is proved, he may under Section 80 sue the administration to which the goods were delivered by him or the administration on whose railway the loss occurred. Section 74E does not enlarge the liability of the administration to which the consignor did not deliver the goods and such administration can be sued only if the loss occurred on its railway.Accordingly, in Union of India v. Shamsuddin Waizuddin, AIR 1958 Pat 575 the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made on other railways. This decision was followed in Chandrasekharam v. Union of India, AIR 1960 Orissa 100.Likewise Section 74E does not restrict the liability imposed by Section 80 on the administration to which the goods were delivered by the consignor. That administration is liable to be sued under Section 80 for the loss whether or not the loss occurred on the railway of another administration.It follows that the High Court rightly decreed the suits. | 0[ds]The Section clearly contemplates that on this matter the administration should submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negligence or misconduct shifts to the consignor.In the present case 14 packages were not delivered to the respondent and suchwas not due to any accident to the train or to fire. The case therefore fell within Clause (a) of Section 74 D. The packages were carried by the Southern Railway and the Bengal Nagpur Railway administrations and the two administrations became bound to disclose to the respondent how the packages were dealt with throughout the time they were in their possession or control. The Union of India representing both the administrations filed separate written statements in the two suits. It made a fuller and more detailed disclosure in the written statement filed in suit No. 6 of 1952. The written statement did not mention any transhipment at Raipuram (Madras) but at the trial it was proved that the consignments were transhipped at Raipuram in wagon No. 37933. The wagon was carried upto Waltair where the Southern Railways ended. Thereafter the wagon was carried over the Bengal Nagpur Railways.It is surprising that after having made this disclosure the appellant did not call the guard or any other witness from Contai Road or Bakhrabad. The guard was present in Court at the hearing of the case. At the close of the evidence an application for adjournment was moved by the appellant stating that the rough journal book of the guard was misled and some time was necessary to trace it. The adjournment was granted. On the adjourned date the guard was not examined nor was the book produced and no explanation was given for this omission. Having regard to the disclosure made in the written statement, it was for the appellant to prove that it had kept proper watch over the wagon while the train was detained at Contai Road and had taken proper care of the packages lying on the track. Three packages were later recovered but no evidence was led to prove that they were offered to the respondent. The appellant called witnesses from Raipuram, Bhadrak and Kharagpur. The witness from Raipuram found wagon No. 37933 to be in good condition. No witness from Vizianagram was called. The witness from Bhadrak checked the wagon and found the seal intact. The written statement shows that the seal was checked at Danton. Danton is about 126 kilometers away from Bhadrak. No witness was called to prove that the seal was found intact at Danton. The witnesses from Kharagpur found that the wagon was without seal and rivet on one side. Had the wagon been properly fastened and secured it is not likely that the packages would be so easily taken out at Contai Road. From the disclosure made by the appellant, the negligence of the servants of the Bengal Nagpur Railway administration may fairly be inferred. The administration was negligent (i) in not properly riveting the wagon; (ii) in not keeping watch over the train at Contai Road; (iii) in not taking proper care of the packages lying on the track between Contai Road and Bakhrabad; and (iv) in not delivering the packages subsequently recovered by it to the consignor.There was never any doubt that the railway company which contracted to carry goods partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement (See Muschamp v. Lancaster Etc., Junction Rly. Co.), (1841) 8 M and W 421 = 151 ER l103. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before Section 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statutory footing.In view of Sections 74C (3) and 74D the consignor can not recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration. If loss due to such negligence or misconduct is proved, he may under Section 80 sue the administration to which the goods were delivered by him or the administration on whose railway the loss occurred. Section 74E does not enlarge the liability of the administration to which the consignor did not deliver the goods and such administration can be sued only if the loss occurred on its railway.Accordingly, in Union of India v. Shamsuddin Waizuddin, AIR 1958 Pat 575 the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made on other railways. This decision was followed in Chandrasekharam v. Union of India, AIR 1960 Orissa 100.Likewise Section 74E does not restrict the liability imposed by Section 80 on the administration to which the goods were delivered by the consignor. That administration is liable to be sued under Section 80 for the loss whether or not the loss occurred on the railway of another administration.It follows that the High Court rightly decreed the suits. | 0 | 3,338 | 969 | ### 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 railway company which contracted to carry goods partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement (See Muschamp v. Lancaster Etc., Junction Rly. Co.), (1841) 8 M and W 421 = 151 ER l103. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before Section 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statutory footing.12. In Secretary of State v. Afzal Hussain, AIR 1920 Oudh 70, Lindsay, J. C held that the G.I.P. Rly, to which the goods had been delivered for carriage to a station on the O. and R. Railway was not liable for loss occuring on the O. and R. Railway due to the negligence of the latter railway. In D. H. Rly. Co. v. Jetmull Bhojraj, AIR 1956 Cal 390 the Calcutta High Court held that the G.I.P. Rly. to which the goods had been delivered for carriage to a station in the Darjeeling Himalayan Rly. was not responsible for the loss occurring on the latter railway. It may be mentioned that the actual decision in the Calcutta case was reversed by this Court on another point in Jetmull Bhojraj v. Darjeeling Himalayan Rly. Co. Ltd., 1963-2 SCR 832 = (AIR 1962 SC 1879 ). We think that the Oudh and the Calcutta cases were not correctly decided.They ignore the clear wording of Section 80. If it was the intention of the legislature to give a right of suit only against the administration on whose line the loss occurred it would have said so. The Section gives a right of suit against the administration to which the goods are delivered by the consignor and it matters not that the loss occurred while the goods were being carried by another administration and was due to the negligence of the latter.In Bengal and N. W. Rly. Co. v. Haji Mutsaddi, (1910) 7 Ind Cas 160 (All) the Allahabad High Court rightly held that the B. and N. W. Railway to which the goods were delivered for carriage to a station on the E. I. Railway was liable to pay compensation for the loss though the loss occurred on the latter Railway.13. The appellant argued that under S. 74 E the respondent must be deemed to have contracted with the Bengal Nagpur Railway only for the carriage of the goods over that railway line and that he had no remedy against the Southern Railway. The contention is based upon a misreading of Section74 E. The material part of that Section runs as follows :"When any animals or goods tendered to a railway administration for carriage by railway have been booked through over the railways of two or more railway administrations or over one or more railway administrations and one or more transport systems not belonging to any railway administration, the person tendering the animals or goods to the railway administration shall be deemed to have contracted with each one of the railway administrations or the owners of the transport system concerned, as the case may be that the provisions of Sections 73, 74 A, 74 B, 74 C, 74 D and 75 shall apply, so far as may be in relation to the carriage of such animals or goods in the same manner and to the same extent as they would have applied if the animals or goods had been carried over only one railway administration."14. It is to be observed that Section72 defines the general responsibility of a railway administration as a carrier of goods. Sections 73, 74A, 74B, 74C, 74D, and 75 contain special provisions limiting the general responsibility as defined in Section 72. The effect of Section 74E is that in the case of goods booked through over the railways of two or more administrations the consignor is deemed to have contracted with each one of them, that those special provisions shall apply, so far as may be in relation to the carriage of goods in the same manner and to the same extent as they would have applied if the goods had been carried over only one administration.In the present case, the goods were carried at owners risk rate over the railways of two administrations and having regard to Section 74E, the provisions of Ss. 74C (3) and Section 74D apply to each administration, as if the goods were carried at only one administration. In view of Sections 74C (3) and 74D the consignor can not recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration. If loss due to such negligence or misconduct is proved, he may under Section 80 sue the administration to which the goods were delivered by him or the administration on whose railway the loss occurred. Section 74E does not enlarge the liability of the administration to which the consignor did not deliver the goods and such administration can be sued only if the loss occurred on its railway.Accordingly, in Union of India v. Shamsuddin Waizuddin, AIR 1958 Pat 575 the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made on other railways. This decision was followed in Chandrasekharam v. Union of India, AIR 1960 Orissa 100.Likewise Section 74E does not restrict the liability imposed by Section 80 on the administration to which the goods were delivered by the consignor. That administration is liable to be sued under Section 80 for the loss whether or not the loss occurred on the railway of another administration.It follows that the High Court rightly decreed the suits.
### Response:
0
### Explanation:
The Section clearly contemplates that on this matter the administration should submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negligence or misconduct shifts to the consignor.In the present case 14 packages were not delivered to the respondent and suchwas not due to any accident to the train or to fire. The case therefore fell within Clause (a) of Section 74 D. The packages were carried by the Southern Railway and the Bengal Nagpur Railway administrations and the two administrations became bound to disclose to the respondent how the packages were dealt with throughout the time they were in their possession or control. The Union of India representing both the administrations filed separate written statements in the two suits. It made a fuller and more detailed disclosure in the written statement filed in suit No. 6 of 1952. The written statement did not mention any transhipment at Raipuram (Madras) but at the trial it was proved that the consignments were transhipped at Raipuram in wagon No. 37933. The wagon was carried upto Waltair where the Southern Railways ended. Thereafter the wagon was carried over the Bengal Nagpur Railways.It is surprising that after having made this disclosure the appellant did not call the guard or any other witness from Contai Road or Bakhrabad. The guard was present in Court at the hearing of the case. At the close of the evidence an application for adjournment was moved by the appellant stating that the rough journal book of the guard was misled and some time was necessary to trace it. The adjournment was granted. On the adjourned date the guard was not examined nor was the book produced and no explanation was given for this omission. Having regard to the disclosure made in the written statement, it was for the appellant to prove that it had kept proper watch over the wagon while the train was detained at Contai Road and had taken proper care of the packages lying on the track. Three packages were later recovered but no evidence was led to prove that they were offered to the respondent. The appellant called witnesses from Raipuram, Bhadrak and Kharagpur. The witness from Raipuram found wagon No. 37933 to be in good condition. No witness from Vizianagram was called. The witness from Bhadrak checked the wagon and found the seal intact. The written statement shows that the seal was checked at Danton. Danton is about 126 kilometers away from Bhadrak. No witness was called to prove that the seal was found intact at Danton. The witnesses from Kharagpur found that the wagon was without seal and rivet on one side. Had the wagon been properly fastened and secured it is not likely that the packages would be so easily taken out at Contai Road. From the disclosure made by the appellant, the negligence of the servants of the Bengal Nagpur Railway administration may fairly be inferred. The administration was negligent (i) in not properly riveting the wagon; (ii) in not keeping watch over the train at Contai Road; (iii) in not taking proper care of the packages lying on the track between Contai Road and Bakhrabad; and (iv) in not delivering the packages subsequently recovered by it to the consignor.There was never any doubt that the railway company which contracted to carry goods partly over its own railway and partly over the railways of other carriers was responsible for the goods for the whole journey unless it limited its liability by agreement (See Muschamp v. Lancaster Etc., Junction Rly. Co.), (1841) 8 M and W 421 = 151 ER l103. The only doubt was about the responsibility of the other companies over whose railway the goods were carried. Before Section 80 was enacted there was elaborate case law on the question whether they could be held liable in tort or by recourse to the doctrine of agency or partnership. Section 80 now places the liability of all the railway administrations concerned on a firm statutory footing.In view of Sections 74C (3) and 74D the consignor can not recover compensation for loss except upon proof that the loss was due to the negligence or misconduct of an administration. If loss due to such negligence or misconduct is proved, he may under Section 80 sue the administration to which the goods were delivered by him or the administration on whose railway the loss occurred. Section 74E does not enlarge the liability of the administration to which the consignor did not deliver the goods and such administration can be sued only if the loss occurred on its railway.Accordingly, in Union of India v. Shamsuddin Waizuddin, AIR 1958 Pat 575 the Patna High Court held that where the goods had been delivered to the Mysore railway for carriage to a station on the Eastern Railway, the latter was not made on other railways. This decision was followed in Chandrasekharam v. Union of India, AIR 1960 Orissa 100.Likewise Section 74E does not restrict the liability imposed by Section 80 on the administration to which the goods were delivered by the consignor. That administration is liable to be sued under Section 80 for the loss whether or not the loss occurred on the railway of another administration.It follows that the High Court rightly decreed the suits.
|
Commnr. Of Central Excise, Chandigarh Vs. M/S. Stesalit Ltd | no duty was paid by the respondent on upgraded reactors, they were not eligible for the benefit of exemption provided vide Notification No. 67/95-CE dated 16.03.1995. They were, therefore, required to pay duty on copper coils as an intermediate product which was meant for captive consumption.7. This led to issuance of show cause notice dated 17.04.2001 to the respondent by the adjudicating authority proposing therein the demand of unpaid duty payable by the respondent on the aforementioned goods and also penalty. By order dated 25.02.2003, the adjudicating authority confirmed the demand of duty for Rs. 2,05,291/- along with interest under Section 11-AB of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). The authority also imposed a penalty of Rs. 2,06,000/- under Section 11-AC of the Act read with Rule 173-Q of the Rules.8. Felt aggrieved by the aforesaid order, the respondent (assessee) filed appeal before the Tribunal. The respondent, however, did not challenge the demand of duty but confined their challenge only to imposition of penalty and, in particular, its quantum. According to the respondent, having regard to the totality of the facts and circumstances of the case, at best, nominal amount of penalty could be levied on the respondent but not the one imposed.9. By impugned order dated 05.11.2003, the Tribunal partly allowed the respondents appeal and reduced the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. It is against this order, the Revenue has filed this appeal by way of special leave before this Court.10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant. None appeared for the respondent.11. Mr. Radhakrishnan, learned senior counsel appearing for the appellant(Revenue) while assailing the legality and correctness of the impugned order contended that keeping in view the law laid down by this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors., (2008) 13 SCC 369 , which unfortunately was not taken note of by the Tribunal though it has direct bearing over the issue in question, the impugned order cannot be said to be legally sustainable and is, therefore, liable to be set aside and that of the adjudicating authority restored.12. It was his submission that the Tribunal had no jurisdiction to reduce the quantum of amount of the penalty imposed by the adjudicating authority on the respondent under Section 11-AC of the Act read with Rule 173-Q of the Rules in the light of the law laid down in Dharamendra Textile Processorss case (supra) and, more so, when in principle, neither the respondent questioned the grounds for its imposition and nor the Tribunal found any fault in the imposition. In other words, the submission was that in the light of the law laid down in the case of Dharamendra Textile Processors (supra), there was no discretion left with the Tribunal to reduce the quantum of penalty amount once it held that a case for penalty is made out.13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra). It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) is correct. The following observations of Their Lordships are apposite which reads as under:"15. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference is answered................."(emphasis supplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside. | 1[ds]13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra).It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) isThe following observations of Their Lordships are apposite which reads asThe stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference issupplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside. | 1 | 1,395 | 580 | ### 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 duty was paid by the respondent on upgraded reactors, they were not eligible for the benefit of exemption provided vide Notification No. 67/95-CE dated 16.03.1995. They were, therefore, required to pay duty on copper coils as an intermediate product which was meant for captive consumption.7. This led to issuance of show cause notice dated 17.04.2001 to the respondent by the adjudicating authority proposing therein the demand of unpaid duty payable by the respondent on the aforementioned goods and also penalty. By order dated 25.02.2003, the adjudicating authority confirmed the demand of duty for Rs. 2,05,291/- along with interest under Section 11-AB of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). The authority also imposed a penalty of Rs. 2,06,000/- under Section 11-AC of the Act read with Rule 173-Q of the Rules.8. Felt aggrieved by the aforesaid order, the respondent (assessee) filed appeal before the Tribunal. The respondent, however, did not challenge the demand of duty but confined their challenge only to imposition of penalty and, in particular, its quantum. According to the respondent, having regard to the totality of the facts and circumstances of the case, at best, nominal amount of penalty could be levied on the respondent but not the one imposed.9. By impugned order dated 05.11.2003, the Tribunal partly allowed the respondents appeal and reduced the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. It is against this order, the Revenue has filed this appeal by way of special leave before this Court.10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant. None appeared for the respondent.11. Mr. Radhakrishnan, learned senior counsel appearing for the appellant(Revenue) while assailing the legality and correctness of the impugned order contended that keeping in view the law laid down by this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors., (2008) 13 SCC 369 , which unfortunately was not taken note of by the Tribunal though it has direct bearing over the issue in question, the impugned order cannot be said to be legally sustainable and is, therefore, liable to be set aside and that of the adjudicating authority restored.12. It was his submission that the Tribunal had no jurisdiction to reduce the quantum of amount of the penalty imposed by the adjudicating authority on the respondent under Section 11-AC of the Act read with Rule 173-Q of the Rules in the light of the law laid down in Dharamendra Textile Processorss case (supra) and, more so, when in principle, neither the respondent questioned the grounds for its imposition and nor the Tribunal found any fault in the imposition. In other words, the submission was that in the light of the law laid down in the case of Dharamendra Textile Processors (supra), there was no discretion left with the Tribunal to reduce the quantum of penalty amount once it held that a case for penalty is made out.13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra). It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) is correct. The following observations of Their Lordships are apposite which reads as under:"15. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference is answered................."(emphasis supplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
### Response:
1
### Explanation:
13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra).It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) isThe following observations of Their Lordships are apposite which reads asThe stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference issupplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
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Sutna Stone & Lime Co.Ltd., M.P. Vs. U.O.I. | in reappreciating the material on record and substituting its own view in place of arbitrators view. This exercise is not permissible by the court in view of the settled legal position. 12. In the instant case, where there is an error apparent on the face of record or where the arbitrator has not followed the statutory legal position, the court would be justified in interfering with the award of the arbitrator. 13. Learned counsel for the respondents placed reliance on Trustees of the Port of Madras v. Engineering Constructions Corporation Limited (1995) 5 SCC 531 wherein this court observed as under:- "In the case of a reasoned award, the court can interfere if the award is based upon a proposition of law which is unsound in law. The error apparent on the face of the award contemplated by Section 16(1) (c) as well as Section 30 (c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. An error of law on the face of the award means an error of law which can be discovered from the award itself or from a document actually incorporated therein. The erroneous proposition of law must be established to have vitiated the decision. The arbitrator being a creature of the contract must operate within the four corners of the contract. It is not permissible to travel beyond and consider material not incorporated in or appended to the award." 14. The learned counsel for the respondents has also placed reliance on the case of Indian Sugar Mills Association AIR 1968 SC 22 (supra). In this case, this court laid down that the local administration was competent to increase the `rates of charges. The arbitrator ignored the settled legal position and consequently the High Court was justified in interfering with the award based on wrong principles of law.15. The learned counsel for the respondents also placed reliance on Bungo Steel Furniture Pvt. Ltd. v. Union of India (1967) 1 SCR 633. In this case, the court observed as under:- "The arbitrator in fixing the amount of compensation had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Arbitrator could not be held to be erroneous on the face of the record." In that case, the court further held as under:- "It is now a well settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself." 16. The Privy Council in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. AIR 1923 PC 66 observed as under:- "An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous." 17. In Raipur Development Authority & Others v. M/s. Chokhamal Contractors & Others (1989) 2 SCC 721 , a Constitution Bench of this Court clarified that "the ground arising out of an error of law apparent on the face of the award prima facie appears to fall either under Section 16(1) (c) of the Act, which empowers the Court to remit the award to the arbitrator where an objection to the legality of the award which is apparent upon the face of it is successfully taken, or under Section 30 (c) of the Act which empowers the Court to set aside an award if it is `otherwise invalid."18. From the discussion of the aforementioned cases, it is clear that the error apparent on the face of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Thawardas Pherumal v. Union of India (1955) 2 SCR 48. The court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The legal position has been crystallized in a series of judgments of this Court that the arbitrator has got ample power in giving an award. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself a task of being a judge of the evidence before the arbitrator. The court should approve the award with the desire to support it, if that is reasonably possible rather than to destroy it, by calling it illegal. This court has very limited jurisdiction to interfere with the reasoned award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.19. In view of the clear legal position which has been correctly appreciated by the High Court in the impugned judgment, in our considered view, no interference is called for. | 0[ds]12. In the instant case, where there is an error apparent on the face of record or where the arbitrator has not followed the statutory legal position, the court would be justified in interfering with the award of the arbitrator.From the discussion of the aforementioned cases, it is clear that the error apparent on the face of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Thawardas Pherumal v. Union of India (1955) 2 SCR 48. The court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The legal position has been crystallized in a series of judgments of this Court that the arbitrator has got ample power in giving an award. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself a task of being a judge of the evidence before the arbitrator. The court should approve the award with the desire to support it, if that is reasonably possible rather than to destroy it, by calling it illegal. This court has very limited jurisdiction to interfere with the reasoned award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.19. In view of the clear legal position which has been correctly appreciated by the High Court in the impugned judgment, in our considered view, no interference is called for. | 0 | 1,889 | 357 | ### Instruction:
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in reappreciating the material on record and substituting its own view in place of arbitrators view. This exercise is not permissible by the court in view of the settled legal position. 12. In the instant case, where there is an error apparent on the face of record or where the arbitrator has not followed the statutory legal position, the court would be justified in interfering with the award of the arbitrator. 13. Learned counsel for the respondents placed reliance on Trustees of the Port of Madras v. Engineering Constructions Corporation Limited (1995) 5 SCC 531 wherein this court observed as under:- "In the case of a reasoned award, the court can interfere if the award is based upon a proposition of law which is unsound in law. The error apparent on the face of the award contemplated by Section 16(1) (c) as well as Section 30 (c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. An error of law on the face of the award means an error of law which can be discovered from the award itself or from a document actually incorporated therein. The erroneous proposition of law must be established to have vitiated the decision. The arbitrator being a creature of the contract must operate within the four corners of the contract. It is not permissible to travel beyond and consider material not incorporated in or appended to the award." 14. The learned counsel for the respondents has also placed reliance on the case of Indian Sugar Mills Association AIR 1968 SC 22 (supra). In this case, this court laid down that the local administration was competent to increase the `rates of charges. The arbitrator ignored the settled legal position and consequently the High Court was justified in interfering with the award based on wrong principles of law.15. The learned counsel for the respondents also placed reliance on Bungo Steel Furniture Pvt. Ltd. v. Union of India (1967) 1 SCR 633. In this case, the court observed as under:- "The arbitrator in fixing the amount of compensation had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Arbitrator could not be held to be erroneous on the face of the record." In that case, the court further held as under:- "It is now a well settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself." 16. The Privy Council in Champsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co. Ltd. AIR 1923 PC 66 observed as under:- "An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous." 17. In Raipur Development Authority & Others v. M/s. Chokhamal Contractors & Others (1989) 2 SCC 721 , a Constitution Bench of this Court clarified that "the ground arising out of an error of law apparent on the face of the award prima facie appears to fall either under Section 16(1) (c) of the Act, which empowers the Court to remit the award to the arbitrator where an objection to the legality of the award which is apparent upon the face of it is successfully taken, or under Section 30 (c) of the Act which empowers the Court to set aside an award if it is `otherwise invalid."18. From the discussion of the aforementioned cases, it is clear that the error apparent on the face of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Thawardas Pherumal v. Union of India (1955) 2 SCR 48. The court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The legal position has been crystallized in a series of judgments of this Court that the arbitrator has got ample power in giving an award. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself a task of being a judge of the evidence before the arbitrator. The court should approve the award with the desire to support it, if that is reasonably possible rather than to destroy it, by calling it illegal. This court has very limited jurisdiction to interfere with the reasoned award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.19. In view of the clear legal position which has been correctly appreciated by the High Court in the impugned judgment, in our considered view, no interference is called for.
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0
### Explanation:
12. In the instant case, where there is an error apparent on the face of record or where the arbitrator has not followed the statutory legal position, the court would be justified in interfering with the award of the arbitrator.From the discussion of the aforementioned cases, it is clear that the error apparent on the face of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Thawardas Pherumal v. Union of India (1955) 2 SCR 48. The court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The legal position has been crystallized in a series of judgments of this Court that the arbitrator has got ample power in giving an award. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself a task of being a judge of the evidence before the arbitrator. The court should approve the award with the desire to support it, if that is reasonably possible rather than to destroy it, by calling it illegal. This court has very limited jurisdiction to interfere with the reasoned award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.19. In view of the clear legal position which has been correctly appreciated by the High Court in the impugned judgment, in our considered view, no interference is called for.
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M/S.Bharat Sales Ltd Vs. L.I.C.Of India | is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet. 5. In Rajbir Kaur v. S.Chokesiri & Co.,(1989) 1 SCC 19 , it was held that it was not necessary for the landlord in every case to prove payment of consideration. It was laid down that if exclusive possession was established, it would not be impermissible for the Court to draw an inference that the transaction was entered into with the monetary consideration in mind. The Court further observed that transactions of subletting in the guise of licenses are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case. It will be noticed that in this case it was established as a fact that the tenant had parted with a part of the demised premises in favour of an ice-cream vendor who was in exclusive possession of that part of the premises and, therefore, the Court drew an inference that the transaction must have been entered into for monetary consideration. This decision has since been followed in many cases, as, for example, United Bank of India v. Cooks and Kelvey Properties (P) Ltd.,(1994) 5 SCC 9 , upon which, as we shall presently see, reliance has been placed by the petitioner also. 6. Learned Counsel for the petitioner drew our attention to a decision of this Court in Delhi Stationers & Printers v. Rajendra Kumar,(1990) 2 SCC 331 , where the tenant was found to have allowed his relative (brother-in-law) to live with him and to use his kitchen and latrine. This was not treated as subletting or parting with possession. Consequently, it is of no aid to petitioner. 7. The case of Jagan Nath v. Chander Bhan & Ors., (1988) 3 SCC 57 is also distinguishable on facts as in that case it was found that the father was carrying on business with his sons and the family was joint Hindu family and, therefore, it was difficult to presume that the father had parted with possession to attract the mischief of Section 14(1)(b) of the Act. Reliance for this purpose was placed on an earlier decision of this Court in Smt. Krishnavati v. Hans Raj,(1974) 1 SCC 289 , in which two persons lived in a house as husband and wife and one of them who was the tenant of the premises allowed the other to carry on business in a part of it. The contention that it amounted to subletting was rejected and it was observed that it would be a rash inference to draw that the husband had sublet the house to the wife. 8. In another case, namely, Gopal Saran v. Satyanarayana,(1989) 3 SCC 56 , which was cited by the Counsel for the petitioner, it was held that the question whether there is a tenancy or licensee or parting with possession in a particular case, would depend upon the quality of occupation given to the licence or the transferee. It was held on facts that where the tenant has allowed the advertisement board of another company to be fixed on the terrace of the shop, he cannot be said to have sublet the premises within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction Act, 1950. 9. Learned Counsel for the petitioner placed strong reliance upon the decision of this Court in United Bank of Indiav.Cooks and Kelvey Properties (P) Ltd.,(1994) 5 SCC 9 , in which it was indicated that the meaning of transfer of a right to enjoy the property for consideration envisaged under Section 105 of the Transfer of Property Act, postulates that a tenant who transfers or assigns his right in the tenancy or any part thereof in whole or in part held by him without the previous consent in writing creates a sub-tenancy. This case also does not help the petitioner as it was found as a fact that although the Bank (appellant) had inducted the trade union into the premises, the Bank had not received any monetary consideration and the union was only permitted to use the property for its trade union activities. It was also found that the Bank had retained its power to call upon the union to vacate the premises at any time. The Bank had been maintaining the premises at its own expenses and was also paying the, electricity charges consumed by the trade union. It was also found that the Bank retained its control over the trade union whose membership was confined only to the employees of the Bank. The possession of the union was held to be constructive possession for and on behalf of the Bank. Reliance was placed on the observation that the existence of consideration, an ingredient of subletting, had not been present to hold that there was subletting. In the background of the facts of the case, this observation does not purport to lay down that in every case payment of consideration must be established by the landlord to prove subletting by the tenant. 10. The Rent Controller as also the Rent Control Appellate Tribunal have found it as a fact that the petitioner had sublet the premises. This finding was accepted by the High Court and was not interfered with on the ground that there was no infirmity or illegality in the judgment. | 0[ds]3. The only contention raised before us in this Special Leave Petition is that the finding recorded by the Rent Controller as also the Rent Control Appellate Tribunal, Delhi, on the question of subletting is erroneous as they have not recorded a positive finding that there was payment of consideration by the so-called sub-tenants to the petitioner for parting with the part of possession of the disputed premises. It is contended that unless payment of consideration was established as a fact between the tenant and the sub-tenant, the eviction petition under Section 14(1)(b) of the Delhi Rent Control Act cannot be allowed. We are not impressed by the argument4. Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant, to whom the property was let out, has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove,by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet10. The Rent Controller as also the Rent Control Appellate Tribunal have found it as a fact that the petitioner had sublet the premises. This finding was accepted by the High Court and was not interfered with on the ground that there was no infirmity or illegality in the judgment. | 0 | 1,759 | 553 | ### Instruction:
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is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet. 5. In Rajbir Kaur v. S.Chokesiri & Co.,(1989) 1 SCC 19 , it was held that it was not necessary for the landlord in every case to prove payment of consideration. It was laid down that if exclusive possession was established, it would not be impermissible for the Court to draw an inference that the transaction was entered into with the monetary consideration in mind. The Court further observed that transactions of subletting in the guise of licenses are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case. It will be noticed that in this case it was established as a fact that the tenant had parted with a part of the demised premises in favour of an ice-cream vendor who was in exclusive possession of that part of the premises and, therefore, the Court drew an inference that the transaction must have been entered into for monetary consideration. This decision has since been followed in many cases, as, for example, United Bank of India v. Cooks and Kelvey Properties (P) Ltd.,(1994) 5 SCC 9 , upon which, as we shall presently see, reliance has been placed by the petitioner also. 6. Learned Counsel for the petitioner drew our attention to a decision of this Court in Delhi Stationers & Printers v. Rajendra Kumar,(1990) 2 SCC 331 , where the tenant was found to have allowed his relative (brother-in-law) to live with him and to use his kitchen and latrine. This was not treated as subletting or parting with possession. Consequently, it is of no aid to petitioner. 7. The case of Jagan Nath v. Chander Bhan & Ors., (1988) 3 SCC 57 is also distinguishable on facts as in that case it was found that the father was carrying on business with his sons and the family was joint Hindu family and, therefore, it was difficult to presume that the father had parted with possession to attract the mischief of Section 14(1)(b) of the Act. Reliance for this purpose was placed on an earlier decision of this Court in Smt. Krishnavati v. Hans Raj,(1974) 1 SCC 289 , in which two persons lived in a house as husband and wife and one of them who was the tenant of the premises allowed the other to carry on business in a part of it. The contention that it amounted to subletting was rejected and it was observed that it would be a rash inference to draw that the husband had sublet the house to the wife. 8. In another case, namely, Gopal Saran v. Satyanarayana,(1989) 3 SCC 56 , which was cited by the Counsel for the petitioner, it was held that the question whether there is a tenancy or licensee or parting with possession in a particular case, would depend upon the quality of occupation given to the licence or the transferee. It was held on facts that where the tenant has allowed the advertisement board of another company to be fixed on the terrace of the shop, he cannot be said to have sublet the premises within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction Act, 1950. 9. Learned Counsel for the petitioner placed strong reliance upon the decision of this Court in United Bank of Indiav.Cooks and Kelvey Properties (P) Ltd.,(1994) 5 SCC 9 , in which it was indicated that the meaning of transfer of a right to enjoy the property for consideration envisaged under Section 105 of the Transfer of Property Act, postulates that a tenant who transfers or assigns his right in the tenancy or any part thereof in whole or in part held by him without the previous consent in writing creates a sub-tenancy. This case also does not help the petitioner as it was found as a fact that although the Bank (appellant) had inducted the trade union into the premises, the Bank had not received any monetary consideration and the union was only permitted to use the property for its trade union activities. It was also found that the Bank had retained its power to call upon the union to vacate the premises at any time. The Bank had been maintaining the premises at its own expenses and was also paying the, electricity charges consumed by the trade union. It was also found that the Bank retained its control over the trade union whose membership was confined only to the employees of the Bank. The possession of the union was held to be constructive possession for and on behalf of the Bank. Reliance was placed on the observation that the existence of consideration, an ingredient of subletting, had not been present to hold that there was subletting. In the background of the facts of the case, this observation does not purport to lay down that in every case payment of consideration must be established by the landlord to prove subletting by the tenant. 10. The Rent Controller as also the Rent Control Appellate Tribunal have found it as a fact that the petitioner had sublet the premises. This finding was accepted by the High Court and was not interfered with on the ground that there was no infirmity or illegality in the judgment.
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### Explanation:
3. The only contention raised before us in this Special Leave Petition is that the finding recorded by the Rent Controller as also the Rent Control Appellate Tribunal, Delhi, on the question of subletting is erroneous as they have not recorded a positive finding that there was payment of consideration by the so-called sub-tenants to the petitioner for parting with the part of possession of the disputed premises. It is contended that unless payment of consideration was established as a fact between the tenant and the sub-tenant, the eviction petition under Section 14(1)(b) of the Delhi Rent Control Act cannot be allowed. We are not impressed by the argument4. Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant, to whom the property was let out, has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove,by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet10. The Rent Controller as also the Rent Control Appellate Tribunal have found it as a fact that the petitioner had sublet the premises. This finding was accepted by the High Court and was not interfered with on the ground that there was no infirmity or illegality in the judgment.
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M/S Cochin Shipyard Ltd Vs. M/S Apeejay Shipping Ltd | award contains reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law and further an error apparent on the face of the record would not imply closer scrutiny of the merits of documents and materials on record. 17. In Hari Om Maheshwari (supra), the Court after referring to the decisions in Arosan Enterprises Ltd. (supra) and Allied Constructions (supra) opined thus:- From the above it is seen that the jurisdiction of the court entertaining a petition or application for setting aside an award under Section 30 of the Act is extremely limited to the grounds mentioned therein and we do not think that grant or refusal of an adjournment by an arbitrator comes within the parameters of Section 30 of the Act... 18. In Wig Brothers (supra) while dealing with the challenge under Sections 30 and 33 of the 1940 Act, the Court opined that a court while considering a challenge to an award under Sections 30 and 33 of the 1940 Act, does not sit as an appellate court and it cannot reappreciate the material on record. The Court further proceeded to state that an award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to appreciate some facts, but if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award. In the said case reference was made to Rajasthan State Mines and Minerals Ltd. (supra) and certain passages were quoted. We think it seemly to reproduce the said paragraphs:- 22. … The rates agreed were firm, fixed and binding irrespective of any fall or rise in the cost of the work covered by the contract or for any other reason or any ground whatsoever. It is specifically agreed that the contractor will not be entitled or justified in raising any claim or dispute because of increase in cost of expenses on any ground whatsoever. By ignoring the said terms, the arbitrator has travelled beyond his jurisdiction as his existence depends upon the agreement and his function is to act within the limits of the said agreement. This deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part but it may tantamount to mala fide action. 23. It is settled law that the arbitrator is the creature of the contract between the parties and hence if he ignores the specific terms of the contract, it would be a question of jurisdictional error which could be corrected by the court and for that limited purpose agreement is required to be considered. … 19. We have referred to series of decisions to appreciate the concept of misconduct and how a party is entitled to make it the fulcrum of assail in his objection under Sections 30 and 33 of the 1940 Act. Misconduct, as has been laid down, does not always have a moral connotation. To elaborate, it may not have any connection with the individual/personal conduct of the arbitrator. The said conduct would be in sphere of moral misconduct. As far as legal misconduct is concerned, as the authorities would demonstrate, the same must be manifest or palpable from the proceedings before the arbitrator. To elaborate, a person urging the ground of legal misconduct has to satisfy the court from the records of the arbitral proceedings that there has been a legal misconduct on the part of the arbitrator as a consequence of which the award gets vitiated. The question of adducing any kind of oral evidence to substantiate the plea or stand or stance does not arise. It has to be shown from the proceedings carried on before the arbitrator and the evidence adduced before the arbitrator. Evidence cannot be adduced in court to substantiate the challenge on the score of legal misconduct. We are not entering upon any discussion pertaining to moral misconduct as that is not the issue in the case at hand. The decision in Fiza Developers and Inter-Trade Private Limited (supra) has been rendered by this Court while interpreting Section 34 of the 1996 Act. The context being different, we are not inclined to apply the principles enumerated therein to the objection filed under Sections 30 and 33 of the 1940 Act, for the simon pure reason that the authorities are plenty to make it limpid that the issue of legal misconduct on the part of the arbitrator should be manifestly discernable from the record. 20. In the instant case, the High Court has granted liberty to the respondent herein to examine its General Manager to substantiate its claim and further opining that the said evidence should be considered within the parameters of Sections 30 and 33 of the 1940 Act. The learned senior counsels for the parties have pressed their argument relating to legal misconduct. Both the learned senior counsels for the parties have construed the order that the said liberty has been granted to establish the misconduct and precisely that is the subject matter of challenge before us. Therefore, we have clearly opined that to substantiate a stance of legal misconduct on the part of the arbitrator, examination of any witness in court is impermissible. It is because it must be palpable from the proceedings and the learned single Judge has already directed that the proceedings before the arbitrator to be requisitioned by the civil court. Least to say, it will be open for the respondent to establish the ground of legal misconduct from the arbitral proceedings. We may hasten to add that we have not said anything as regards legal misconduct pertaining to the present case, although we have referred to certain authorities as regards the legal misconduct. | 1[ds]4. At the very outset, we are obliged to state that the respondent has not challenged the order passed by the High Court and, therefore, as far as examination of the umpire is concerned, it stands foreclosed. As far as liberty to examine the witness to substantiate the claim for the rule making Court is concerned, it is contended by Mr. Ranjit Kumar, learned Solicitor General for the appellant, that the respondent has been allowed to examine the employee as a witness to prove the misconduct of the learned arbitrator in conducting of the arbitral proceedings as the grounds had been raised pertaining to grant of adequate opportunity to the respondent and the recording of minutes. In essence, the stand of the respondent was that there had been violation of the principles of the natural justice by the learned arbitrator. It is urged by the learned senior counsel for the appellant that it is totally unwarranted to examine witnesses for the purpose of substantiating the claims before the Court which has the authority to accept the objection under Sections 30 and 33 of the 1940 Act or to pass a decree in terms of the award. In essence, the attack on the order by Mr. Ranjit Kumar is that the witness No. 2, General Manager, could not have been permitted by the High Court to be examined as a witness in the Court to prove any kind of legal misconduct, for the same has to be demonstrated from the records of the arbitral proceedings as well as the evidence adduced before the learned arbitrator. It is further contended that the witness sought to be examined had already been examined before the learned arbitrator and his evidence can be read by the trial court to discern and decide if there is any perversity of approach by the arbitrator. Learned Solicitor General, to bolster his submissions, has placed reliance on Arosan Enterprises Ltd. v. Union of India and Another (1999) 9 SCC 449 ), Inder Sain Mittal v. Housing Board, Haryana and Others (2002) 3 SCC 175 ), State of U.P. v. Allied Constructions (2003) 7 SCC 396 ), State Bank of India v. Ram Das and Another (2003) 12 SCC 474 ), D.D. Sharma v. Union of India (2004) 5 SCC 325 ), Hari Om Maheshwari v. Vinitkumar Parikh (2005) 1 SCC 379 ), Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. (2005) 6 SCC 462 )and Oil and Natural Gas Corporation v. Wig Brothers Builders and Engineers Private Limited (2010) 13 SCC 377 )19. We have referred to series of decisions to appreciate the concept of misconduct and how a party is entitled to make it the fulcrum of assail in his objection under Sections 30 and 33 of the 1940 Act. Misconduct, as has been laid down, does not always have a moral connotation. To elaborate, it may not have any connection with the individual/personal conduct of the arbitrator. The said conduct would be in sphere of moral misconduct. As far as legal misconduct is concerned, as the authorities would demonstrate, the same must be manifest or palpable from the proceedings before the arbitrator. To elaborate, a person urging the ground of legal misconduct has to satisfy the court from the records of the arbitral proceedings that there has been a legal misconduct on the part of the arbitrator as a consequence of which the award gets vitiated. The question of adducing any kind of oral evidence to substantiate the plea or stand or stance does not arise. It has to be shown from the proceedings carried on before the arbitrator and the evidence adduced before the arbitrator. Evidence cannot be adduced in court to substantiate the challenge on the score of legal misconduct. We are not entering upon any discussion pertaining to moral misconduct as that is not the issue in the case at hand. The decision in Fiza Developers and Inter-Trade Private Limited (supra) has been rendered by this Court while interpreting Section 34 of the 1996 Act. The context being different, we are not inclined to apply the principles enumerated therein to the objection filed under Sections 30 and 33 of the 1940 Act, for the simon pure reason that the authorities are plenty to make it limpid that the issue of legal misconduct on the part of the arbitrator should be manifestly discernable from the record | 1 | 4,429 | 806 | ### 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:
award contains reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law and further an error apparent on the face of the record would not imply closer scrutiny of the merits of documents and materials on record. 17. In Hari Om Maheshwari (supra), the Court after referring to the decisions in Arosan Enterprises Ltd. (supra) and Allied Constructions (supra) opined thus:- From the above it is seen that the jurisdiction of the court entertaining a petition or application for setting aside an award under Section 30 of the Act is extremely limited to the grounds mentioned therein and we do not think that grant or refusal of an adjournment by an arbitrator comes within the parameters of Section 30 of the Act... 18. In Wig Brothers (supra) while dealing with the challenge under Sections 30 and 33 of the 1940 Act, the Court opined that a court while considering a challenge to an award under Sections 30 and 33 of the 1940 Act, does not sit as an appellate court and it cannot reappreciate the material on record. The Court further proceeded to state that an award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to appreciate some facts, but if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award. In the said case reference was made to Rajasthan State Mines and Minerals Ltd. (supra) and certain passages were quoted. We think it seemly to reproduce the said paragraphs:- 22. … The rates agreed were firm, fixed and binding irrespective of any fall or rise in the cost of the work covered by the contract or for any other reason or any ground whatsoever. It is specifically agreed that the contractor will not be entitled or justified in raising any claim or dispute because of increase in cost of expenses on any ground whatsoever. By ignoring the said terms, the arbitrator has travelled beyond his jurisdiction as his existence depends upon the agreement and his function is to act within the limits of the said agreement. This deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part but it may tantamount to mala fide action. 23. It is settled law that the arbitrator is the creature of the contract between the parties and hence if he ignores the specific terms of the contract, it would be a question of jurisdictional error which could be corrected by the court and for that limited purpose agreement is required to be considered. … 19. We have referred to series of decisions to appreciate the concept of misconduct and how a party is entitled to make it the fulcrum of assail in his objection under Sections 30 and 33 of the 1940 Act. Misconduct, as has been laid down, does not always have a moral connotation. To elaborate, it may not have any connection with the individual/personal conduct of the arbitrator. The said conduct would be in sphere of moral misconduct. As far as legal misconduct is concerned, as the authorities would demonstrate, the same must be manifest or palpable from the proceedings before the arbitrator. To elaborate, a person urging the ground of legal misconduct has to satisfy the court from the records of the arbitral proceedings that there has been a legal misconduct on the part of the arbitrator as a consequence of which the award gets vitiated. The question of adducing any kind of oral evidence to substantiate the plea or stand or stance does not arise. It has to be shown from the proceedings carried on before the arbitrator and the evidence adduced before the arbitrator. Evidence cannot be adduced in court to substantiate the challenge on the score of legal misconduct. We are not entering upon any discussion pertaining to moral misconduct as that is not the issue in the case at hand. The decision in Fiza Developers and Inter-Trade Private Limited (supra) has been rendered by this Court while interpreting Section 34 of the 1996 Act. The context being different, we are not inclined to apply the principles enumerated therein to the objection filed under Sections 30 and 33 of the 1940 Act, for the simon pure reason that the authorities are plenty to make it limpid that the issue of legal misconduct on the part of the arbitrator should be manifestly discernable from the record. 20. In the instant case, the High Court has granted liberty to the respondent herein to examine its General Manager to substantiate its claim and further opining that the said evidence should be considered within the parameters of Sections 30 and 33 of the 1940 Act. The learned senior counsels for the parties have pressed their argument relating to legal misconduct. Both the learned senior counsels for the parties have construed the order that the said liberty has been granted to establish the misconduct and precisely that is the subject matter of challenge before us. Therefore, we have clearly opined that to substantiate a stance of legal misconduct on the part of the arbitrator, examination of any witness in court is impermissible. It is because it must be palpable from the proceedings and the learned single Judge has already directed that the proceedings before the arbitrator to be requisitioned by the civil court. Least to say, it will be open for the respondent to establish the ground of legal misconduct from the arbitral proceedings. We may hasten to add that we have not said anything as regards legal misconduct pertaining to the present case, although we have referred to certain authorities as regards the legal misconduct.
### Response:
1
### Explanation:
4. At the very outset, we are obliged to state that the respondent has not challenged the order passed by the High Court and, therefore, as far as examination of the umpire is concerned, it stands foreclosed. As far as liberty to examine the witness to substantiate the claim for the rule making Court is concerned, it is contended by Mr. Ranjit Kumar, learned Solicitor General for the appellant, that the respondent has been allowed to examine the employee as a witness to prove the misconduct of the learned arbitrator in conducting of the arbitral proceedings as the grounds had been raised pertaining to grant of adequate opportunity to the respondent and the recording of minutes. In essence, the stand of the respondent was that there had been violation of the principles of the natural justice by the learned arbitrator. It is urged by the learned senior counsel for the appellant that it is totally unwarranted to examine witnesses for the purpose of substantiating the claims before the Court which has the authority to accept the objection under Sections 30 and 33 of the 1940 Act or to pass a decree in terms of the award. In essence, the attack on the order by Mr. Ranjit Kumar is that the witness No. 2, General Manager, could not have been permitted by the High Court to be examined as a witness in the Court to prove any kind of legal misconduct, for the same has to be demonstrated from the records of the arbitral proceedings as well as the evidence adduced before the learned arbitrator. It is further contended that the witness sought to be examined had already been examined before the learned arbitrator and his evidence can be read by the trial court to discern and decide if there is any perversity of approach by the arbitrator. Learned Solicitor General, to bolster his submissions, has placed reliance on Arosan Enterprises Ltd. v. Union of India and Another (1999) 9 SCC 449 ), Inder Sain Mittal v. Housing Board, Haryana and Others (2002) 3 SCC 175 ), State of U.P. v. Allied Constructions (2003) 7 SCC 396 ), State Bank of India v. Ram Das and Another (2003) 12 SCC 474 ), D.D. Sharma v. Union of India (2004) 5 SCC 325 ), Hari Om Maheshwari v. Vinitkumar Parikh (2005) 1 SCC 379 ), Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. (2005) 6 SCC 462 )and Oil and Natural Gas Corporation v. Wig Brothers Builders and Engineers Private Limited (2010) 13 SCC 377 )19. We have referred to series of decisions to appreciate the concept of misconduct and how a party is entitled to make it the fulcrum of assail in his objection under Sections 30 and 33 of the 1940 Act. Misconduct, as has been laid down, does not always have a moral connotation. To elaborate, it may not have any connection with the individual/personal conduct of the arbitrator. The said conduct would be in sphere of moral misconduct. As far as legal misconduct is concerned, as the authorities would demonstrate, the same must be manifest or palpable from the proceedings before the arbitrator. To elaborate, a person urging the ground of legal misconduct has to satisfy the court from the records of the arbitral proceedings that there has been a legal misconduct on the part of the arbitrator as a consequence of which the award gets vitiated. The question of adducing any kind of oral evidence to substantiate the plea or stand or stance does not arise. It has to be shown from the proceedings carried on before the arbitrator and the evidence adduced before the arbitrator. Evidence cannot be adduced in court to substantiate the challenge on the score of legal misconduct. We are not entering upon any discussion pertaining to moral misconduct as that is not the issue in the case at hand. The decision in Fiza Developers and Inter-Trade Private Limited (supra) has been rendered by this Court while interpreting Section 34 of the 1996 Act. The context being different, we are not inclined to apply the principles enumerated therein to the objection filed under Sections 30 and 33 of the 1940 Act, for the simon pure reason that the authorities are plenty to make it limpid that the issue of legal misconduct on the part of the arbitrator should be manifestly discernable from the record
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New India Assurance Co.Ltd Vs. Kiran Singh | therefore, the amount per passenger comes to Rs. 30/- and as per the Indian Motor Tariff Rules the liability of the company is only to the extent of Rs. 30,000/- per passenger. It is further argued that the company had filed true copy of the policy before the Tribunal in which there is an endorsement I.M.T. 13, but both the Tribunal and the High Court have committed an error in placing reliance on the copy of the policy which was produced by the bank manager, in which there was no endorsement I.M.T.13 as in the case of the copy of the policy produced by the appellant-company. 4. The above submission had been repelled by both the Tribunal and the High Court. Both the Courts below have concurrently held that the appellant had not led any evidence to prove that the policy document which was filed by the appellant along with the written statement was genuine and the same was issued to the insured. There is no dispute that the appellant-company failed to lead any evidence to prove that the copy of the policy filed by the company was genuine. Such concurrent findings of fact based on appreciation of evidence cannot be interfered with. There is a categorical finding by both the courts below that the so-called insurance policy filed by the appellant-company had not been proved, as no evidence was led by the company. Both the courts below have concurrently held, based on evidence, that the copy of the so-called policy produced by the appellant in absence of proof thereof cannot be treated as a valid document and cannot be relied upon. Such concurrent findings of facts based on appreciation of evidence cannot be termed as erroneous, which would warrant our interference, in exercise of our jurisdiction under Article 136. Similarly, both the courts below have relied upon the carbon copy of the policy, which was handed over to the bank at the time of insurance of the vehicle, produced by the bank manager. The bank manager was examined by the owner and in his statement he had categorically stated that the policy document is one which the bank had received in token of the insurance of the vehicle through the appellant-company. Keeping in view the statement of the bank manager which proved that the carbon copy is indicia of the original copy of the policy, both the courts below were justified in accepting the copy of the policy produced by the Bank Manager as genuine documents. In other words the copy of the policy produced by the Bank Manager has been proved as genuine. We are also of the view, that the Bank Manager being an independent and uninterested party, his evidence was rightly accepted by both the courts as reliable and creditworthy. It is noticed that the schedule attached to the policy indicates the excess payment of premium of Rs. 1290/- for covering the risk of 40 passengers. It is also noticed that the liability of the appellant-company is unlimited. We have also perused the policy and we find that there is no such endorsement I.M.T.13, as claimed by the appellant. We do not see any infirmity in the findings recorded by both the courts below concurrently. 5. It is contended that the multiplier of 43 applied by the Tribunal is erroneous. In this connection, the learned counsel for the appellant had referred to the decision of this Court in U.P. State Road Transport Corporation vs. Trilok Chandra, (1996) 4 SCC 362, wherein this Court has held that the multiplier should not be more than 18. The Tribunal while applying the 43 multiplier had considered the age of the deceased being 27 years and if he had not died in the accident he would have lived up to the age of 70 years and one day he would have been promoted to the post of Chief Engineer. Keeping the aforesaid background in view, the High Court was of the view, that if the multiplier is reduced and multiplicand is enhanced not much difference would be caused to the amount fixed by the Tribunal. Even otherwise it is a trite law that the insurance company is not capable to challenge the quantum of compensation. 6. Insurance is a covenant of good faith, where both parties are covenanted to abide by the terms and conditions of the policy. In the premises aforesaid, it is clear that the company has made a deliberate attempt to escape the liability by introducing a copy of the policy other than the insured. Often, the terms and conditions are being respected more in breach than observance. Insurance company must bear in mind that they are the trustee of the public. Keeper of the public coffer. Often, even genuine claims are being hotly contested in a routine manner by dragging the parties to courts, wasting enormous time and money for the claimants to get their claims settled. The Act like Motor Vehicles Act being a beneficial legislation aimed at quick redressal of the victims of accident arising out of the use of motor vehicles, the attitude routinely adopted by the insurance company would render the object of the Act frustrated. If such instances are brought to the court, the court would be obliged to dismiss the appeal with heavy costs, apart from deprecating such practices. CIVIL APPEAL NO. 3783 OF 1999 7. This appeal had been filed by the claimants for the enhancement of the compensation. On 13.4.2004 after the matter was fully argued by the counsel for the insurance company, an adjournment was sought for on the ground that Advocate-on-record in this appeal was out of town. As the matter was connected with the appeal preferred by the insurance company, it was adjourned for one week for further hearing. On 20.4.2004 also, none appeared for the appellants to press this matter. Even otherwise on merit also we do not find any infirmity in the orders of the courts below which would warrant our interference. 8. | 0[ds]for the appellant-company argued that the original policy issued by the appellant-company had an endorsement affixed to it by which I.M.T. 13 was incorporated as a term of the policy and, therefore, the premium paid by the owner could fetch only to the tune of Rs. 30,000/- as compensation per passenger. It is argued that the premium amount paid was Rs. 1290/- covering the risk of 43 passengers and, therefore, the amount per passenger comes to Rs. 30/- and as per the Indian Motor Tariff Rules the liability of the company is only to the extent of Rs. 30,000/- per passenger. It is further argued that the company had filed true copy of the policy before the Tribunal in which there is an endorsement I.M.T. 13, but both the Tribunal and the High Court have committed an error in placing reliance on the copy of the policy which was produced by the bank manager, in which there was no endorsement I.M.T.13 as in the case of the copy of the policy produced by the appellant-companyThe above submission had been repelled by both the Tribunal and the High Court. Both the Courts below have concurrently held that the appellant had not led any evidence to prove that the policy document which was filed by the appellant along with the written statement was genuine and the same was issued to the insured. There is no dispute that the appellant-company failed to lead any evidence to prove that the copy of the policy filed by the company was genuine. Such concurrent findings of fact based on appreciation of evidence cannot be interfered with. There is a categorical finding by both the courts below that the so-called insurance policy filed by the appellant-company had not been proved, as no evidence was led by the company. Both the courts below have concurrently held, based on evidence, that the copy of the so-called policy produced by the appellant in absence of proof thereof cannot be treated as a valid document and cannot be relied upon. Such concurrent findings of facts based on appreciation of evidence cannot be termed as erroneous, which would warrant our interference, in exercise of our jurisdiction under Article 136. Similarly, both the courts below have relied upon the carbon copy of the policy, which was handed over to the bank at the time of insurance of the vehicle, produced by the bank manager. The bank manager was examined by the owner and in his statement he had categorically stated that the policy document is one which the bank had received in token of the insurance of the vehicle through the appellant-company. Keeping in view the statement of the bank manager which proved that the carbon copy is indicia of the original copy of the policy, both the courts below were justified in accepting the copy of the policy produced by the Bank Manager as genuine documents. In other words the copy of the policy produced by the Bank Manager has been proved as genuine. We are also of the view, that the Bank Manager being an independent and uninterested party, his evidence was rightly accepted by both the courts as reliable and creditworthy. It is noticed that the schedule attached to the policy indicates the excess payment of premium of Rs. 1290/- for covering the risk of 40 passengers. It is also noticed that the liability of the appellant-company is unlimited. We have also perused the policy and we find that there is no such endorsement I.M.T.13, as claimed by the appellant. We do not see any infirmity in the findings recorded by both the courts below concurrentlyCIVIL APPEAL NO. 3783 OF 19997. This appeal had been filed by the claimants for the enhancement of the compensation. On 13.4.2004 after the matter was fully argued by the counsel for the insurance company, an adjournment was sought for on the ground that Advocate-on-record in this appeal was out of town. As the matter was connected with the appeal preferred by the insurance company, it was adjourned for one week for further hearing. On 20.4.2004 also, none appeared for the appellants to press this matter. Even otherwise on merit also we do not find any infirmity in the orders of the courts below which would warrant our interference | 0 | 1,407 | 773 | ### 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:
therefore, the amount per passenger comes to Rs. 30/- and as per the Indian Motor Tariff Rules the liability of the company is only to the extent of Rs. 30,000/- per passenger. It is further argued that the company had filed true copy of the policy before the Tribunal in which there is an endorsement I.M.T. 13, but both the Tribunal and the High Court have committed an error in placing reliance on the copy of the policy which was produced by the bank manager, in which there was no endorsement I.M.T.13 as in the case of the copy of the policy produced by the appellant-company. 4. The above submission had been repelled by both the Tribunal and the High Court. Both the Courts below have concurrently held that the appellant had not led any evidence to prove that the policy document which was filed by the appellant along with the written statement was genuine and the same was issued to the insured. There is no dispute that the appellant-company failed to lead any evidence to prove that the copy of the policy filed by the company was genuine. Such concurrent findings of fact based on appreciation of evidence cannot be interfered with. There is a categorical finding by both the courts below that the so-called insurance policy filed by the appellant-company had not been proved, as no evidence was led by the company. Both the courts below have concurrently held, based on evidence, that the copy of the so-called policy produced by the appellant in absence of proof thereof cannot be treated as a valid document and cannot be relied upon. Such concurrent findings of facts based on appreciation of evidence cannot be termed as erroneous, which would warrant our interference, in exercise of our jurisdiction under Article 136. Similarly, both the courts below have relied upon the carbon copy of the policy, which was handed over to the bank at the time of insurance of the vehicle, produced by the bank manager. The bank manager was examined by the owner and in his statement he had categorically stated that the policy document is one which the bank had received in token of the insurance of the vehicle through the appellant-company. Keeping in view the statement of the bank manager which proved that the carbon copy is indicia of the original copy of the policy, both the courts below were justified in accepting the copy of the policy produced by the Bank Manager as genuine documents. In other words the copy of the policy produced by the Bank Manager has been proved as genuine. We are also of the view, that the Bank Manager being an independent and uninterested party, his evidence was rightly accepted by both the courts as reliable and creditworthy. It is noticed that the schedule attached to the policy indicates the excess payment of premium of Rs. 1290/- for covering the risk of 40 passengers. It is also noticed that the liability of the appellant-company is unlimited. We have also perused the policy and we find that there is no such endorsement I.M.T.13, as claimed by the appellant. We do not see any infirmity in the findings recorded by both the courts below concurrently. 5. It is contended that the multiplier of 43 applied by the Tribunal is erroneous. In this connection, the learned counsel for the appellant had referred to the decision of this Court in U.P. State Road Transport Corporation vs. Trilok Chandra, (1996) 4 SCC 362, wherein this Court has held that the multiplier should not be more than 18. The Tribunal while applying the 43 multiplier had considered the age of the deceased being 27 years and if he had not died in the accident he would have lived up to the age of 70 years and one day he would have been promoted to the post of Chief Engineer. Keeping the aforesaid background in view, the High Court was of the view, that if the multiplier is reduced and multiplicand is enhanced not much difference would be caused to the amount fixed by the Tribunal. Even otherwise it is a trite law that the insurance company is not capable to challenge the quantum of compensation. 6. Insurance is a covenant of good faith, where both parties are covenanted to abide by the terms and conditions of the policy. In the premises aforesaid, it is clear that the company has made a deliberate attempt to escape the liability by introducing a copy of the policy other than the insured. Often, the terms and conditions are being respected more in breach than observance. Insurance company must bear in mind that they are the trustee of the public. Keeper of the public coffer. Often, even genuine claims are being hotly contested in a routine manner by dragging the parties to courts, wasting enormous time and money for the claimants to get their claims settled. The Act like Motor Vehicles Act being a beneficial legislation aimed at quick redressal of the victims of accident arising out of the use of motor vehicles, the attitude routinely adopted by the insurance company would render the object of the Act frustrated. If such instances are brought to the court, the court would be obliged to dismiss the appeal with heavy costs, apart from deprecating such practices. CIVIL APPEAL NO. 3783 OF 1999 7. This appeal had been filed by the claimants for the enhancement of the compensation. On 13.4.2004 after the matter was fully argued by the counsel for the insurance company, an adjournment was sought for on the ground that Advocate-on-record in this appeal was out of town. As the matter was connected with the appeal preferred by the insurance company, it was adjourned for one week for further hearing. On 20.4.2004 also, none appeared for the appellants to press this matter. Even otherwise on merit also we do not find any infirmity in the orders of the courts below which would warrant our interference. 8.
### Response:
0
### Explanation:
for the appellant-company argued that the original policy issued by the appellant-company had an endorsement affixed to it by which I.M.T. 13 was incorporated as a term of the policy and, therefore, the premium paid by the owner could fetch only to the tune of Rs. 30,000/- as compensation per passenger. It is argued that the premium amount paid was Rs. 1290/- covering the risk of 43 passengers and, therefore, the amount per passenger comes to Rs. 30/- and as per the Indian Motor Tariff Rules the liability of the company is only to the extent of Rs. 30,000/- per passenger. It is further argued that the company had filed true copy of the policy before the Tribunal in which there is an endorsement I.M.T. 13, but both the Tribunal and the High Court have committed an error in placing reliance on the copy of the policy which was produced by the bank manager, in which there was no endorsement I.M.T.13 as in the case of the copy of the policy produced by the appellant-companyThe above submission had been repelled by both the Tribunal and the High Court. Both the Courts below have concurrently held that the appellant had not led any evidence to prove that the policy document which was filed by the appellant along with the written statement was genuine and the same was issued to the insured. There is no dispute that the appellant-company failed to lead any evidence to prove that the copy of the policy filed by the company was genuine. Such concurrent findings of fact based on appreciation of evidence cannot be interfered with. There is a categorical finding by both the courts below that the so-called insurance policy filed by the appellant-company had not been proved, as no evidence was led by the company. Both the courts below have concurrently held, based on evidence, that the copy of the so-called policy produced by the appellant in absence of proof thereof cannot be treated as a valid document and cannot be relied upon. Such concurrent findings of facts based on appreciation of evidence cannot be termed as erroneous, which would warrant our interference, in exercise of our jurisdiction under Article 136. Similarly, both the courts below have relied upon the carbon copy of the policy, which was handed over to the bank at the time of insurance of the vehicle, produced by the bank manager. The bank manager was examined by the owner and in his statement he had categorically stated that the policy document is one which the bank had received in token of the insurance of the vehicle through the appellant-company. Keeping in view the statement of the bank manager which proved that the carbon copy is indicia of the original copy of the policy, both the courts below were justified in accepting the copy of the policy produced by the Bank Manager as genuine documents. In other words the copy of the policy produced by the Bank Manager has been proved as genuine. We are also of the view, that the Bank Manager being an independent and uninterested party, his evidence was rightly accepted by both the courts as reliable and creditworthy. It is noticed that the schedule attached to the policy indicates the excess payment of premium of Rs. 1290/- for covering the risk of 40 passengers. It is also noticed that the liability of the appellant-company is unlimited. We have also perused the policy and we find that there is no such endorsement I.M.T.13, as claimed by the appellant. We do not see any infirmity in the findings recorded by both the courts below concurrentlyCIVIL APPEAL NO. 3783 OF 19997. This appeal had been filed by the claimants for the enhancement of the compensation. On 13.4.2004 after the matter was fully argued by the counsel for the insurance company, an adjournment was sought for on the ground that Advocate-on-record in this appeal was out of town. As the matter was connected with the appeal preferred by the insurance company, it was adjourned for one week for further hearing. On 20.4.2004 also, none appeared for the appellants to press this matter. Even otherwise on merit also we do not find any infirmity in the orders of the courts below which would warrant our interference
|
Indo Burma Petroleum Corp. Ltd Vs. Commissioner Vat Delhi | par with price on 05-06-2006, the notification issued by the Govt. would deem to have become inoperative. The penalty imposed upon the dealers are consequential to the tax imposed.?11. The matters were carried in appeal by the appellants, namely Appeal Nos.134-147/ATVAT/08-09 and other connected matters. The Appellate Tribunal in its common judgment and order dated 01.12.2011 dismissed the appeals as regards the main issue but set aside the demand of penalties. It was observed, as under: ?17?. Tax is to be paid as per Section 4 of the Act on the taxable turnover. Taxable turnover is to be computed as per Section 5 r/w Section 2(1)(zm) of the Act. Section 2(1)zm) talks about the ?sale price?. ?Sale price? is defined by Section 2(1)(zd) as a valuable consideration for any sale including amount of tax payable under the Act. (emphasis in bold) Thus if a State Govt. wants to give relief against the price increased by the Central Government the it could only do so by not charging tax on the increased portion but for doing so it had to exclude the increased portion from the purview of the expression ?valuable consideration for any sale?. In our considered view purpose of the Govt. of NCT of Delhi in introducing the proviso in question, when considered from the plain language of the proviso, was to direct the appellant dealers to continue to pay the VAT as if there was no increase in the prices by the Central Govt. In our considered view, the act of the Govt. of NCT of Delhi in introducing the proviso in question, by no stretch of imagination, could goad the appellants to embark upon an exercise in reducing the basic price for calculating the VAT, as argued by the Ld. Counsel for the appellants because simple meaning of this proviso is that oil companies were not required to include the increased component as a part of sale consideration under Section 2(1)(zd) of the Act. When the increased component was not to be a part of sale consideration under Section 2(1) (zd) of the Act, the obviously the appellants were not to charge VAT on the same as per the definition of the term ?sale price? which came to be controlled by introduction of the proviso in question. When there was no effect of the increased component, in the liability to pay Vat then it was immaterial when there was complete roll back or when the Notification was issued as per this proviso. Thus in our considered view, the submission of the Ld. Counsel for the appellants that the meaning of this proviso was that appellants shall continue to follow the deduction till another notification was issued which was in fact issued in June 2007 and oil companies stopped taking benefit of the proviso after this notification in June 2007, is without any merit.?12. The appellant-companies being aggrieved in so far as the interpretation placed on the first proviso to Section 2(1)(zd) of the Act was concerned, preferred appeals under Section 81 of the Act before the High Court. The High Court took the view that upon the partial roll back w.e.f. 30.11.2006 and upon the complete roll back w.e.f. 16.02.2007 benefit of the proviso ceased to be partly or fully applicable. According to the High Court the proviso simply protected and gave exemption in respect of enhanced ad valorem VAT payable on account of increase in petrol and diesel from 06.06.2006 and the benefit under the proviso ceased to operate partly and fully on and w.e.f. partial and complete roll back respectively. These appeals by special leave challenge the correctness of the decision of the High Court. We have heard Mr. S. Ganesh, learned Senior Advocate in support of the appeals and Mr. Arvind Datar learned Senior Advocate for the respondents. 13. According to the appellants, the benefit in terms of the proviso in question was to the extent of VAT chargeable and payable in respect of the amount of increase and the benefit so quantified must be made available regardless of any variation or decrease in the rates of Petrol and High Speed Diesel. For example, if the price before the increase in rates is taken to be x and the price were to be x+4 as a result of increase w.e.f. 06.06.2006, the benefit of VAT payable in respect of the element of increase i.e. 4 must be available even if upon partial roll back the price were to be x+1 or upon full roll back the price were to be x itself. If the logic is accepted, upon full roll back, according to the appellants the VAT would be payable on x-4. 14. In our view, the proviso ought to be given normal and natural meaning keeping in mind the context, object and reasons for its enactment and incorporation. The idea was to protect the interest of the consumers by giving exemption in respect of enhanced ad valorem VAT payable on account of increase in prices of diesel and petrol from 06.06.2006. On the element of increase no additional ad valorem VAT was payable and according to the proviso the increased component was not to be part of sale consideration. Consequently VAT was not to be charged in respect of such increased component, as per definition of the term ?sale price? which came to be controlled by introduction of the proviso. When there was no increased component and therefore no liability to pay VAT in respect of such increased component, benefit under the proviso ceased to be applicable. The proviso cannot be given operation beyond the element of increase, so much so that even after complete roll back, the benefit in respect of that amount must operate. That certainly was not the intent. The idea was to grant benefit only in respect of that element of VAT respecting increase in rates and not beyond. If that component of increase ceased to be in existence, the benefit of proviso also ceased to be in operation. | 0[ds]g aggrieved in so far as the interpretation placed on the first proviso to Section 2(1)(zd) of the Act was concerned, preferred appeals under Section 81 of the Act before the High Court. The High Court took the view that upon the partial roll back w.e.f. 30.11.2006 and upon the complete roll back w.e.f. 16.02.2007 benefit of the proviso ceased to be partly or fully applicable. According to the High Court the proviso simply protected and gave exemption in respect of enhanced ad valorem VAT payable on account of increase in petrol and diesel from 06.06.2006 and the benefit under the proviso ceased to operate partly and fully on and w.e.f. partial and complete roll back respectively. These appeals by special leave challenge the correctness of the decision of the High Court.We have heard Mr. S. Ganesh, learned Senior Advocate in support of the appeals and Mr. Arvind Datar learned Senior Advocate for the respondents.In our view, the proviso ought to be given normal and natural meaning keeping in mind the context, object and reasons for its enactment and incorporation. The idea was to protect the interest of the consumers by giving exemption in respect of enhanced ad valorem VAT payable on account of increase in prices of diesel and petrol from 06.06.2006. On the element of increase no additional ad valorem VAT was payable and according to the proviso the increased component was not to be part of sale consideration. Consequently VAT was not to be charged in respect of such increased component, as per definition of the term ?sale price? which came to be controlled by introduction of the proviso. When there was no increased component and therefore no liability to pay VAT in respect of such increased component, benefit under the proviso ceased to be applicable. The proviso cannot be given operation beyond the element of increase, so much so that even after complete roll back, the benefit in respect of that amount must operate. That certainly was not the intent. The idea was to grant benefit only in respect of that element of VAT respecting increase in rates and not beyond. If that component of increase ceased to be in existence, the benefit of proviso also ceased to be in operation. | 0 | 3,059 | 412 | ### 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:
par with price on 05-06-2006, the notification issued by the Govt. would deem to have become inoperative. The penalty imposed upon the dealers are consequential to the tax imposed.?11. The matters were carried in appeal by the appellants, namely Appeal Nos.134-147/ATVAT/08-09 and other connected matters. The Appellate Tribunal in its common judgment and order dated 01.12.2011 dismissed the appeals as regards the main issue but set aside the demand of penalties. It was observed, as under: ?17?. Tax is to be paid as per Section 4 of the Act on the taxable turnover. Taxable turnover is to be computed as per Section 5 r/w Section 2(1)(zm) of the Act. Section 2(1)zm) talks about the ?sale price?. ?Sale price? is defined by Section 2(1)(zd) as a valuable consideration for any sale including amount of tax payable under the Act. (emphasis in bold) Thus if a State Govt. wants to give relief against the price increased by the Central Government the it could only do so by not charging tax on the increased portion but for doing so it had to exclude the increased portion from the purview of the expression ?valuable consideration for any sale?. In our considered view purpose of the Govt. of NCT of Delhi in introducing the proviso in question, when considered from the plain language of the proviso, was to direct the appellant dealers to continue to pay the VAT as if there was no increase in the prices by the Central Govt. In our considered view, the act of the Govt. of NCT of Delhi in introducing the proviso in question, by no stretch of imagination, could goad the appellants to embark upon an exercise in reducing the basic price for calculating the VAT, as argued by the Ld. Counsel for the appellants because simple meaning of this proviso is that oil companies were not required to include the increased component as a part of sale consideration under Section 2(1)(zd) of the Act. When the increased component was not to be a part of sale consideration under Section 2(1) (zd) of the Act, the obviously the appellants were not to charge VAT on the same as per the definition of the term ?sale price? which came to be controlled by introduction of the proviso in question. When there was no effect of the increased component, in the liability to pay Vat then it was immaterial when there was complete roll back or when the Notification was issued as per this proviso. Thus in our considered view, the submission of the Ld. Counsel for the appellants that the meaning of this proviso was that appellants shall continue to follow the deduction till another notification was issued which was in fact issued in June 2007 and oil companies stopped taking benefit of the proviso after this notification in June 2007, is without any merit.?12. The appellant-companies being aggrieved in so far as the interpretation placed on the first proviso to Section 2(1)(zd) of the Act was concerned, preferred appeals under Section 81 of the Act before the High Court. The High Court took the view that upon the partial roll back w.e.f. 30.11.2006 and upon the complete roll back w.e.f. 16.02.2007 benefit of the proviso ceased to be partly or fully applicable. According to the High Court the proviso simply protected and gave exemption in respect of enhanced ad valorem VAT payable on account of increase in petrol and diesel from 06.06.2006 and the benefit under the proviso ceased to operate partly and fully on and w.e.f. partial and complete roll back respectively. These appeals by special leave challenge the correctness of the decision of the High Court. We have heard Mr. S. Ganesh, learned Senior Advocate in support of the appeals and Mr. Arvind Datar learned Senior Advocate for the respondents. 13. According to the appellants, the benefit in terms of the proviso in question was to the extent of VAT chargeable and payable in respect of the amount of increase and the benefit so quantified must be made available regardless of any variation or decrease in the rates of Petrol and High Speed Diesel. For example, if the price before the increase in rates is taken to be x and the price were to be x+4 as a result of increase w.e.f. 06.06.2006, the benefit of VAT payable in respect of the element of increase i.e. 4 must be available even if upon partial roll back the price were to be x+1 or upon full roll back the price were to be x itself. If the logic is accepted, upon full roll back, according to the appellants the VAT would be payable on x-4. 14. In our view, the proviso ought to be given normal and natural meaning keeping in mind the context, object and reasons for its enactment and incorporation. The idea was to protect the interest of the consumers by giving exemption in respect of enhanced ad valorem VAT payable on account of increase in prices of diesel and petrol from 06.06.2006. On the element of increase no additional ad valorem VAT was payable and according to the proviso the increased component was not to be part of sale consideration. Consequently VAT was not to be charged in respect of such increased component, as per definition of the term ?sale price? which came to be controlled by introduction of the proviso. When there was no increased component and therefore no liability to pay VAT in respect of such increased component, benefit under the proviso ceased to be applicable. The proviso cannot be given operation beyond the element of increase, so much so that even after complete roll back, the benefit in respect of that amount must operate. That certainly was not the intent. The idea was to grant benefit only in respect of that element of VAT respecting increase in rates and not beyond. If that component of increase ceased to be in existence, the benefit of proviso also ceased to be in operation.
### Response:
0
### Explanation:
g aggrieved in so far as the interpretation placed on the first proviso to Section 2(1)(zd) of the Act was concerned, preferred appeals under Section 81 of the Act before the High Court. The High Court took the view that upon the partial roll back w.e.f. 30.11.2006 and upon the complete roll back w.e.f. 16.02.2007 benefit of the proviso ceased to be partly or fully applicable. According to the High Court the proviso simply protected and gave exemption in respect of enhanced ad valorem VAT payable on account of increase in petrol and diesel from 06.06.2006 and the benefit under the proviso ceased to operate partly and fully on and w.e.f. partial and complete roll back respectively. These appeals by special leave challenge the correctness of the decision of the High Court.We have heard Mr. S. Ganesh, learned Senior Advocate in support of the appeals and Mr. Arvind Datar learned Senior Advocate for the respondents.In our view, the proviso ought to be given normal and natural meaning keeping in mind the context, object and reasons for its enactment and incorporation. The idea was to protect the interest of the consumers by giving exemption in respect of enhanced ad valorem VAT payable on account of increase in prices of diesel and petrol from 06.06.2006. On the element of increase no additional ad valorem VAT was payable and according to the proviso the increased component was not to be part of sale consideration. Consequently VAT was not to be charged in respect of such increased component, as per definition of the term ?sale price? which came to be controlled by introduction of the proviso. When there was no increased component and therefore no liability to pay VAT in respect of such increased component, benefit under the proviso ceased to be applicable. The proviso cannot be given operation beyond the element of increase, so much so that even after complete roll back, the benefit in respect of that amount must operate. That certainly was not the intent. The idea was to grant benefit only in respect of that element of VAT respecting increase in rates and not beyond. If that component of increase ceased to be in existence, the benefit of proviso also ceased to be in operation.
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Dasaudha Singh & Ors. Etc. Etc Vs. State Of Haryana & Ors | being fully alive to the matter of compensation it would be legitimate to assume that it did not intend to make any provision when possession was to be handed over by the tenant to the original owner pursuant to an order made under Section 7. The reason apparently for not making any pro-visions for compensation one way or the other was that it was clearly contemplated that the tenant would have to give up possession on the expiry of the term of the lease which was for a long period and during which he was expected, as has been observed before, to derive the maxi-mum benefit by means of cultivation of food and foodgrains crops. Since the provisions of the Tenancy Act have been held to be inapplicable to the tenant as defined by the Act we are unable to hold that he was entitled to any compensation before giving up possession in compliance with the order made under Section 7 of the Act. 12. Before the High Court it had been urged on behalf of the appellants that they cloud be ejected only in accordance with the pro-visions of the Punjab Security of Land Tenures Act 1953. The High Court held that owing to Section 21(1) nothing contained in that Act should affect any Land held by a tenant or lessee under the Government. Mr. Dutta who represented some of the appellants before us did not press any argument relating to the applicability of the provisions of the Land Revenue Act to the case of the appellants. At any rate, and this position has been rightly conceded by the counsel for the respondents, the appellants cannot be debarred from taking benefit of or seeking protection under any enactment if they can establish that they are governed by its provisions. 13. Dr. Singhvi who argued Civil Appeal No. 825/72 has raised some other points in addition to those already disposed of. According to him after the Registrar of Co-operative Societies had settled the dispute between the Karnal Society and the Lyallpur Society the latter took no interest in 175 acres of land situate in village Pahowa which had been allotted to it and which were brought under cultivation by the appellants Dasaudha Singh and others. This, it is said was done with the tacit approval of the Collector. It is, however, admitted that the lease was in favour of the aforesaid societies and the allegation that the appellants brought this land under cultivation with the tacit approval of the Collector contained in para 5 of the Writ Petition was denied in the written statement filed on behalf of the respondents. In the Jamabandi entries of 1963–64 the entry was as follows: ––?The Collector, Karnal, Lessor, Karnal Co-operative Farmers, Karnal, Lyallpur Co-operative Farmers, Karnal in equal share Lessees. Cultivation Layallpur Co-operative Farmers, Karnal through Dasaudha Singh.…………………..tenants at–will?. It is difficult to understand how the Jamabandi entry helps the appellants at all. It seems to indicate that the persons who were shown, as tenants at will were cultivating it under the societies which were the lessees. They could not, therefore, claim any better rights then the societies which were the tenants of the Collector and amenable to his Jurisdiction under the Act. It may be mentioned that in the High Court this point does not appear to have been argued and we do not have the benefit of any finding of that Court on that point. It has, further, been submitted on behalf of the appellants that before any orders were made under Section. 7 of the Act the tenants or the persons in occupation of the lands in question should have been given an opportunity of being heard to satisfy the well-settled rule of natural justice. Under Section 7 the Collector has to decide and name the owners to whom possession shall be given. The tenant can have no locus stand in that matter in which if there were any rival claimants they alone would be interested. The scheme of Section 7 is such that it is not possible to read into it any requirement of a notice being issued to the tenants before any order is made by the Collector under that section. 14. Before the High Court only in one case i.e. C.W. 2171/71 it was pointed out that the petitioners therein had purchased 6 acres of land from the original land owner and as such the Collector could not legally dispossess them from that portion of the land. The Additional Advocate General conceded that in case that area had been purchased by the petitioners in that writ petition they would not be dispossessed and the possession would be restored to them if dispossession had taken place. On behalf of a number of appellants it has been contended that several portions of lands in dispute have been purchased from the original owners and the purchasers are actually in possession. It is not disputed by the counsel for the respondents that if any person has acquired the ownership rights in any of the lands which were the subject matter of the writ petition he can approach the Collector who will consider his case fully and if it is proved that he has become an owner then his possession will not be disturbed and no orders will be made with regard to the area in his occupation or possession under Section 7. This will fully safeguard the interest of those persons who have acquired ownership rights either before or during the pendency of the proceedings in the High Court or even in this Court. 15. Lastly we cannot help observing that the appellants will be put to a good deal of hardship by being asked to give up all lands which they had been cultivating for so many years and which probably are the main source of their livelihood. But that hardship could be alleviated or some relief given by legislation alone. The Court unable to do anything in the matter. | 0[ds]It is difficult to understand how the Jamabandi entry helps the appellants at all. It seems to indicate that the persons who were shown, as tenants at will were cultivating it under the societies which were the lessees. They could not, therefore, claim any better rights then the societies which were the tenants of the Collector and amenable to his Jurisdiction under the Act. It may be mentioned that in the High Court this point does not appear to have been argued and we do not have the benefit of any finding of that Court on that point. It has, further, been submitted on behalf of the appellants that before any orders were made under Section. 7 of the Act the tenants or the persons in occupation of the lands in question should have been given an opportunity of being heard to satisfy the well-settled rule of natural justice. Under Section 7 the Collector has to decide and name the owners to whom possession shall be given. The tenant can have no locus stand in that matter in which if there were any rival claimants they alone would be interested. The scheme of Section 7 is such that it is not possible to read into it any requirement of a notice being issued to the tenants before any order is made by the Collector under that section14. Before the High Court only in one case i.e. C.W. 2171/71 it was pointed out that the petitioners therein had purchased 6 acres of land from the original land owner and as such the Collector could not legally dispossess them from that portion of the land. The Additional Advocate General conceded that in case that area had been purchased by the petitioners in that writ petition they would not be dispossessed and the possession would be restored to them if dispossession had taken place. On behalf of a number of appellants it has been contended that several portions of lands in dispute have been purchased from the original owners and the purchasers are actually in possession. It is not disputed by the counsel for the respondents that if any person has acquired the ownership rights in any of the lands which were the subject matter of the writ petition he can approach the Collector who will consider his case fully and if it is proved that he has become an owner then his possession will not be disturbed and no orders will be made with regard to the area in his occupation or possession under Section 7. This will fully safeguard the interest of those persons who have acquired ownership rights either before or during the pendency of the proceedings in the High Court or even in this Court15. Lastly we cannot help observing that the appellants will be put to a good deal of hardship by being asked to give up all lands which they had been cultivating for so many years and which probably are the main source of their livelihood. But that hardship could be alleviated or some relief given by legislation alone. The Court unable to do anything in the matter. | 0 | 5,176 | 551 | ### Instruction:
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being fully alive to the matter of compensation it would be legitimate to assume that it did not intend to make any provision when possession was to be handed over by the tenant to the original owner pursuant to an order made under Section 7. The reason apparently for not making any pro-visions for compensation one way or the other was that it was clearly contemplated that the tenant would have to give up possession on the expiry of the term of the lease which was for a long period and during which he was expected, as has been observed before, to derive the maxi-mum benefit by means of cultivation of food and foodgrains crops. Since the provisions of the Tenancy Act have been held to be inapplicable to the tenant as defined by the Act we are unable to hold that he was entitled to any compensation before giving up possession in compliance with the order made under Section 7 of the Act. 12. Before the High Court it had been urged on behalf of the appellants that they cloud be ejected only in accordance with the pro-visions of the Punjab Security of Land Tenures Act 1953. The High Court held that owing to Section 21(1) nothing contained in that Act should affect any Land held by a tenant or lessee under the Government. Mr. Dutta who represented some of the appellants before us did not press any argument relating to the applicability of the provisions of the Land Revenue Act to the case of the appellants. At any rate, and this position has been rightly conceded by the counsel for the respondents, the appellants cannot be debarred from taking benefit of or seeking protection under any enactment if they can establish that they are governed by its provisions. 13. Dr. Singhvi who argued Civil Appeal No. 825/72 has raised some other points in addition to those already disposed of. According to him after the Registrar of Co-operative Societies had settled the dispute between the Karnal Society and the Lyallpur Society the latter took no interest in 175 acres of land situate in village Pahowa which had been allotted to it and which were brought under cultivation by the appellants Dasaudha Singh and others. This, it is said was done with the tacit approval of the Collector. It is, however, admitted that the lease was in favour of the aforesaid societies and the allegation that the appellants brought this land under cultivation with the tacit approval of the Collector contained in para 5 of the Writ Petition was denied in the written statement filed on behalf of the respondents. In the Jamabandi entries of 1963–64 the entry was as follows: ––?The Collector, Karnal, Lessor, Karnal Co-operative Farmers, Karnal, Lyallpur Co-operative Farmers, Karnal in equal share Lessees. Cultivation Layallpur Co-operative Farmers, Karnal through Dasaudha Singh.…………………..tenants at–will?. It is difficult to understand how the Jamabandi entry helps the appellants at all. It seems to indicate that the persons who were shown, as tenants at will were cultivating it under the societies which were the lessees. They could not, therefore, claim any better rights then the societies which were the tenants of the Collector and amenable to his Jurisdiction under the Act. It may be mentioned that in the High Court this point does not appear to have been argued and we do not have the benefit of any finding of that Court on that point. It has, further, been submitted on behalf of the appellants that before any orders were made under Section. 7 of the Act the tenants or the persons in occupation of the lands in question should have been given an opportunity of being heard to satisfy the well-settled rule of natural justice. Under Section 7 the Collector has to decide and name the owners to whom possession shall be given. The tenant can have no locus stand in that matter in which if there were any rival claimants they alone would be interested. The scheme of Section 7 is such that it is not possible to read into it any requirement of a notice being issued to the tenants before any order is made by the Collector under that section. 14. Before the High Court only in one case i.e. C.W. 2171/71 it was pointed out that the petitioners therein had purchased 6 acres of land from the original land owner and as such the Collector could not legally dispossess them from that portion of the land. The Additional Advocate General conceded that in case that area had been purchased by the petitioners in that writ petition they would not be dispossessed and the possession would be restored to them if dispossession had taken place. On behalf of a number of appellants it has been contended that several portions of lands in dispute have been purchased from the original owners and the purchasers are actually in possession. It is not disputed by the counsel for the respondents that if any person has acquired the ownership rights in any of the lands which were the subject matter of the writ petition he can approach the Collector who will consider his case fully and if it is proved that he has become an owner then his possession will not be disturbed and no orders will be made with regard to the area in his occupation or possession under Section 7. This will fully safeguard the interest of those persons who have acquired ownership rights either before or during the pendency of the proceedings in the High Court or even in this Court. 15. Lastly we cannot help observing that the appellants will be put to a good deal of hardship by being asked to give up all lands which they had been cultivating for so many years and which probably are the main source of their livelihood. But that hardship could be alleviated or some relief given by legislation alone. The Court unable to do anything in the matter.
### Response:
0
### Explanation:
It is difficult to understand how the Jamabandi entry helps the appellants at all. It seems to indicate that the persons who were shown, as tenants at will were cultivating it under the societies which were the lessees. They could not, therefore, claim any better rights then the societies which were the tenants of the Collector and amenable to his Jurisdiction under the Act. It may be mentioned that in the High Court this point does not appear to have been argued and we do not have the benefit of any finding of that Court on that point. It has, further, been submitted on behalf of the appellants that before any orders were made under Section. 7 of the Act the tenants or the persons in occupation of the lands in question should have been given an opportunity of being heard to satisfy the well-settled rule of natural justice. Under Section 7 the Collector has to decide and name the owners to whom possession shall be given. The tenant can have no locus stand in that matter in which if there were any rival claimants they alone would be interested. The scheme of Section 7 is such that it is not possible to read into it any requirement of a notice being issued to the tenants before any order is made by the Collector under that section14. Before the High Court only in one case i.e. C.W. 2171/71 it was pointed out that the petitioners therein had purchased 6 acres of land from the original land owner and as such the Collector could not legally dispossess them from that portion of the land. The Additional Advocate General conceded that in case that area had been purchased by the petitioners in that writ petition they would not be dispossessed and the possession would be restored to them if dispossession had taken place. On behalf of a number of appellants it has been contended that several portions of lands in dispute have been purchased from the original owners and the purchasers are actually in possession. It is not disputed by the counsel for the respondents that if any person has acquired the ownership rights in any of the lands which were the subject matter of the writ petition he can approach the Collector who will consider his case fully and if it is proved that he has become an owner then his possession will not be disturbed and no orders will be made with regard to the area in his occupation or possession under Section 7. This will fully safeguard the interest of those persons who have acquired ownership rights either before or during the pendency of the proceedings in the High Court or even in this Court15. Lastly we cannot help observing that the appellants will be put to a good deal of hardship by being asked to give up all lands which they had been cultivating for so many years and which probably are the main source of their livelihood. But that hardship could be alleviated or some relief given by legislation alone. The Court unable to do anything in the matter.
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SOUTHERN POWER DISTRIBUTION POWER COMPANY LIMITED OF ANDHRA PRADESH (APSPDCL) & ANR Vs. M/S HINDUJA NATIONAL POWER CORPORATION LIMITED & ANR | when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable. 106. We may also gainfully refer to the following observations of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 : 25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful ex- cuse. It is an act done wrongfully and wil- fully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prej- udice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is mani- fested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207 ] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49 ] , State of A.P. v. Goverdhan- lal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941 ] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .) 26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of In- dia v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150] .) 107. We have no hesitation to hold that I.A. No.1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015 filed by the appellants – DISCOMS, are acts, which have been done wrongfully and wilfully without reasonable and probable cause. It may not necessarily be an act done out of ill feeling and spite. However, the act is one, affecting public interest and public good, without there being any rational or reasonable basis for the same. 108. Though serious allegations of mala fide have been made by HNPCL, we do not find it necessary to go in those allegations. However, in our view, the present case would squarely fit in the realm of legal malice or malice in law. 109. In any case, we find that the judgment impugned before us cannot be said to be of such a nature, which can be said to be prejudicial to the interests of any of the parties. What has been done by the APTEL is only to direct the State Commission to dispose of O.P. No.21 of 2015 filed for determination of capital cost and O.P. No.19 of 2016 filed for approval of Amended and Restated PPA (Continuation Agreement) on merits. On remand, the State Commission would be bound to take into consideration all the relevant factors and the contentions to be raised by both the parties before deciding the said O.Ps. 110. We therefore find no reason to interfere with the impugned judgment. However, before parting with the judgment, it is necessary to place on record the conduct of the appellants – DISCOMS. Though vide order dated 14th July, 2020, this Court had stayed the impugned judgment passed by the APTEL, vide order dated 21st August, 2020, this Court had clarified that there shall be no stay of the order dated 16th March, 2018 passed by the APTEL. It is not in dispute that in pursuance of the interim order dated 16th March, 2018, passed by the APTEL, the appellants – DISCOMS were purchasing the power at the rate of Rs.3.82 per unit from HNPCL till 14th July, 2020. It is thus clear that in view of the order passed by this Court on 21st August, 2020, the appellants – DISCOMS were required to continue to purchase the power from HNPCL at the rate of Rs.3.82 per unit. Undisputedly, this has not been done. The reason given for the same is that the appellants - DISCOMS had already filed an application for vacation of the order dated 21st August, 2020. By merely filing an application, the appellants – DISCOMS could not have avoided abiding with the order of the APTEL dated 16th March, 2018, as maintained by this Court vide order dated 21st August, 2020. It is brought to our notice that though the appellants – DISCOMS could have purchased the power from HNPCL at the rate of Rs.3.82 per unit in view of the orders passed by the APTEL and by this Court, they have chosen to purchase the power at higher rate from various generators including KSK Mahanadi from whom the power is being purchased at the rate of Rs.4.33 per unit. 111. We ask a question to ourselves, as to whether public interest, which is so vociferously pressed into service in the present matter by the appellants – DISCOMS, lies in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi. We strongly deprecate such a conduct of the appellants – DISCOMS, which are instrumentalities of the State. The appellants – DISCOMS, rather than acting in public interest, have acted contrary to public interest. For defying the orders passed by this Court, we could very well have initiated the action against the officials of the appellants – DISCOMS for having committed contempt of this Court, but we refrain ourselves from doing so. | 0[ds]73. It could thus clearly be seen that though HNPCL had initially proposed to revive its project in the year 2007 as a Merchant--power plant and had proposed to give the Government of Andhra Pradesh first right of refusal, in the MoU, to purchase 25% of the power at regulated tariff, it was at the instance of the State of Andhra Pradesh that it had agreed to supply 100% power to the State through APDISCOMS. It could clearly be seen from the record that though HNPCL had participated in the bidding process conducted by the APCPDCL in the year 2011--2012 and though HNPCL had successfully emerged as L--2 bidder in the said bidding process, it was on account of the decision of the Bid Evaluation Committee, that HNPCL was discarded from the bidding process since the entire generation capacity of HNPCL was encumbered to the State of Andhra Pradesh/APDISCOMS. The minutes of the meeting dated 28th September, 2012 of the Bid Evaluation Committee, as has been noticed in the order of the State Commission dated 13th August, 2013, clarify this position.74. It is the State of Andhra Pradesh, which had expressed its interest in purchasing 100% power from HNPCL, as could be seen from the various documents placed on record. The communication addressed by the Principal Secretary to the Government of Andhra Pradesh, Energy Department, to HNPCL dated 26th December, 2012, clearly reiterates the intention of the Government of Andhra Pradesh in purchasing 100% power (through DISCOMS) from the project of HNPCL. The said communication would also show that the State has assured to take all necessary steps for commissioning the project at the earliest including execution of PPA and for making provision of Transmission system for start--up power and power evacuation. The said communication would clearly show that the parties had agreed to abide by the conditions mentioned in the Amended and Restated PPA dated 15th April, 1998, except to the extent they may stand modified due to impact of change in laws/rules and regulated standards guiding such power projects post 1998.75. No doubt, that the documents placed on record would show that though HNPCL had given its estimation of project cost on the basis of the guidelines issued by the CERC, the same was received by the appellants – DISCOMS without prejudice to their rights to contest the same on every component before the State Commission. The documents placed on record would clearly show that the State of Andhra Pradesh has, on more than one occasion, expressed that it was interested in buying 100% power from the project of HNPCL. The MoA signed between the appellants – DISCOMS and HNPCL dated 17th May, 2013, would clearly show that it was agreed between the parties that the entire capacity of HNPCL project and all the units of the power stations shall, at all times, be for the exclusive benefit of the DISCOMS and the DISCOMS were to have the exclusive right as well as obligation to purchase the entire capacity from the project. Not only this, but after the Reorganisation Act came into effect and the erstwhile State of Andhra Pradesh was bifurcated into the State of Andhra Pradesh and the State of Telangana, the State of Andhra Pradesh, on more than one occasion, reiterated its stand of procuring 100% power from the project of HNPCL. Perusal of the orders of the State Commission dated 26th September, 2015 and 6th August, 2016, would clearly reveal that the appellants – DISCOMS also stood by the position that the 100% power generated in the power plant of HNPCL was to be purchased by them. Not only this, but after the bifurcation of the erstwhile State of Andhra Pradesh, the appellants – DISCOMS entered into a Continuation Agreement dated 28th April, 2016, reiterating their stand.76. After the Continuation Agreement was entered into on 28th April, 2016, the appellants – DISCOMS filed O.P. No.19 of 2016 for approval of the Continuation Agreement with the Amended and Restated PPA of 1998 on 11th May, 2016. The State Government again on 1st June, 2016, accorded its approval for purchase of 100% power generated by HNPCL. It could thus be seen that right from the year 2012 till January, 2018, it was the consistent stand of the State of Andhra Pradesh as well as the appellants – DISCOMS and its predecessors that the appellants - DISCOMS were to purchase 100% power generated by HNPCL.77. It is also not in dispute that in pursuance of the MoA, executed on 17th May, 2013, HNPCL had also entered into FSA dated 26th August, 2013 with Mahanadi Coalfield Limited for supply of coal for the project.78. It is thus clear that the consistent stand of the appellants - DISCOMS from the year 2012, for the first time, changed on 4th January, 2018, when they filed Interlocutory Applications before the State Commission for withdrawal of O.P. No.19 of 2016 and disposal of O.P. No.21 of 2015.79. As already observed hereinabove, in the open bidding process, conducted in the year 2011--2012, HNPCL emerged as the successful L--2 bidder. It is however on account of the stand taken by the Bid Evaluation Committee, that it was discarded from the bidding process. As such, the stand of the appellants – DISCOMS, that the revival of the project of HNPCL was as a Merchant--power plant and therefore, the appellants – DISCOMS cannot be compelled to purchase power from it, is self-contradictory. On one hand, HNPCL was discarded from the open bidding process, though it was the successful L--2 bidder, on the ground that 100% power generated by HNPCL is encumbered to the State of Andhra Pradesh/APDISCOMS whereas, on the other hand, it is now sought to be urged that the appellants – DISCOMS cannot be compelled to purchase the power from HNPCL, since it was a Merchant--power plant. We have no hesitation to hold that the APTEL has rightly held that, on account of the assurance given by the State of Andhra Pradesh/APDISCOMS, HNPCL had altered its position and as such, it was not permissible for the appellants – DISCOMS to withdraw O.P. No.19 of 2016. The grounds, which are sought to be urged in I.A. No.1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015, were very much available when the appellants – DISCOMS had entered into MoA on 17th May, 2013 and the Continuation Agreement dated 28th April, 2016. It is difficult to appreciate how it is permissible for the appellants – DISCOMS to withdraw the application for grant of approval of PPA on the ground that it could procure the power only through the competitive bidding process, when in the facts of the present case, it was the State of Andhra Pradesh, which had discarded HNPCL from the open bidding process of 2011- 2012, though it had successfully emerged as L--2 bidder in the said bidding process.80. Various authorities have been cited at the Bar in support of the proposition that withdrawal of an application could not be permissible when such a withdrawal amounts to frustration of a contract and thereby defeats the rights of the defendant and that the right of withdrawal is not absolute. In this respect, we will refer to the observations made by this Court in the case of Arjun Singh v. Mohindra Kumar & Ors. (1964) 5 SCR 946. Though the issue involved in the said case is distinct than the issue involved in the present case, we find that it will be apposite to seek guidance from the observations made by this Court, while construing the provisions of Order IX and Order XX of the Code of Civil Procedure, 1908 (CPC). The relevant extract reads thus:….In the present context when once the hearing starts, the Code contem- plates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where, the hearing is completed the parties have no further rights or priv- ileges in the matter and it is only for the convenience of the Court that Or- der XX. Rule 1 permits judgment to be delivered after interval after the hearing is completed. It would, there- fore, follow that after the stage con- templated by Order IX. Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX. Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that de-cree set aside by application under Or-der IX. Rule 13. There is thus no hia- tus between the two stages of reser- vation of judgment and pronouncing the judgment so as to make it neces- sary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX. Rule7. We are, therefore, of the opinion that the Civil Judge was not competent to en- tertain the application dated May 31, 1958 purporting to be under Order IX. Rule 7 and that consequently the rea- sons given in the order passed would not be res judicata to bar the hearing of the petition undo Order IX. Rule 13 filed by the appellant.81. It can be seen that this Court has held that CPC contemplates two stages of the trial in the suit: (1) where the hearing is adjourned; and (2) where the hearing is completed. It has been held that where the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX rule 1 permits judgment to be delivered after an interval after the hearing is completed. It has been held that there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX rule 7.83. Insofar as the reliance placed by Shri Vaidyanathan, learned Senior Counsel, on the judgment of Court of Appeal in the case of Boal Quay Wharfingers Ltd. (supra) is concerned, the said case arose out of an application made by the appellant therein to the Licensing Authority for grant of a license. It was not an application in a quasi-judicial proceeding where the withdrawal of an application would adversely affect the rights of the other party. In the said case, it has been observed that if a person applies for a license, there is no prohibition as to why he is not entitled to withdraw his application, unless, of course, there is some provision in law, which would prevent him from doing so. The proceedings in the aforesaid case did not arise from a lis between the two parties, but arose out of an application made by a party to a licensing authority under the Docks and Harbours Act, 1966.84. Insofar as the reliance placed on the judgment of this Court in the case of Hulas Rai Baij Nath (supra) is concerned, the respondent therein had instituted a suit for rendition of accounts against the appellant-firm, alleging that the appellant-firm was the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent were not settled. The claim of the respondent was resisted by the appellant therein, stating that the claim of the respondent was fully settled and that the suit was not fit to proceed in accordance with law. In the said suit, after a considerable amount of evidence had been recorded, an application was presented on behalf of the respondent-plaintiff for withdrawal of the suit. The same was objected to. The trial court overruled the objection of the appellant--defendant, holding that the plaintiff had a right to withdraw the suit and that right could be exercised at any time before judgment. The defendant could only claim an order for costs in his favour. The suit was therefore dismissed awarding costs of the suit to the appellant- defendant. The appellant--defendant filed revision in the High Court. The High Court dismissed the revision. Being aggrieved, the appellant--defendant had approached the Apex Court. In this factual background, this Court observed thus:2. The short question that, in these cir- cumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of ac- counts had yet been passed. The language of order 23 Rule 1 sub-rule (1) CPC, gives an unqualified right to a plaintiff to with- draw from a suit and, if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-rule (3) of that Rule. There is no provision in the Code of Civil Procedure which requires the Court to refuse permis- sion to withdraw the suit in such circum- stances and to compel the plaintiff to pro- ceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under order 8 CPC, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. In the present case, the pleadings in paras 8 and 11 of the written statement mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown under which a counter-claim could have been filed in the trial court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary de- cree had been passed for rendition of ac- count and, in fact, the appellant was still contending that there could be no rendi- tion of accounts in the suit, because ac- counts had already been settled. Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the ap- pellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed.85. It could thus be seen that the facts in the aforesaid case are totally different from the facts in the present case. This Court in the aforesaid case held that there is no provision in the CPC, which requires the Court to refuse permission to withdraw the suit and compel the plaintiff to proceed with it. However, this Court itself has clarified that different considerations could arise where a set-off may have been claimed under order VIII of CPC, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. It was found that from the pleadings in the written statement, it could be clearly seen that there is no claim for set-off. It was further found that there could be no counter-claim, since no provision was shown under which a counter-claim could have been filed in the trial court in such a suit. It was further found that the right claimed by the appellant was a contingent one and did not exist at the time at which the written statement was filed.86. The facts in the present case are totally different, wherein, after execution of various agreements, an application being O.P. No.19 of 2016 came to be filed for grant of approval of PPA. Not only this, but the said O.P. No.19 of 2016 was clubbed along with O.P. No.21 of 2015, which was filed for determination of capital cost of the project as well as for determination of tariff. It can further be seen that in the aforesaid case, an application for withdrawal of the suit was filed at the stage of leading of evidence. It is not as if the application was filed after the suit was closed for judgment.87. In any case, we are of the considered view that the conduct of the appellants – DISCOMS, in the present case, would disentitle them to withdraw the application.88. Another argument, that on account of increase of the capital cost of the project, the appellants – DISCOMS would be required to purchase power at much higher rate, also does not hold water. The State Commission while determining the tariff would be guided by various factors as are required to be taken into consideration in view of the provisions of Section 61 of the Act of 2003. In any event, the appellants – DISCOMS have themselves reserved their right to contest the correctness of the cost on every component at an appropriate stage before the State Commission. As already stated hereinabove, the State Commission, while approving the cost of the project and determining the tariff at which the electricity would be purchased by the APDISCOMS from HNPCL, would be required to look into various factors as are stated in Section 61 of the Act of 2003, so also under the Regulations notified for that purpose. While doing so, the State Commission would be required to take into consideration the various aspects as well as submissions to be made by the appellants – DISCOMS and HNPCL. Merely because, the cost of the project is estimated by HNPCL at a particular amount, the State Commission is not bound to accept the same. The State Commission would only approve the cost as it would feel appropriate, as guided by the provisions under Section 61 of the Act of 2003 and the Regulations. In that view of the matter, the argument in this regard also, is without substance.89. The appellants – DISCOMS have heavily relied on the judgment of this Court in the case of Tata Power Company Limited v. Reliance Energy Limited and others (2009) 16 SCC 659, and particularly, on paragraph 106 thereof, which reads thus:106. The scheme of the Act, namely, the generation of electricity is outside the licensing purview and subject to ful- filment of the conditions laid down un- der Section 42 of the Act a generating company may also supply directly to consumer wherefor no licence would be required, must be given due considera- tion. The said provision has to be read with Regulation 24. In regard to the grant of approval of PPA the procedures laid down in Regulation 24 are required to be followed.90. No doubt, that this Court has held that a generating company may also supply directly to consumer wherefor no licence would be required, however, this Court itself observed that the said provision has to be read with Regulation 24 and with regard to the grant of approval of PPA, the procedures laid down in Regulation 24 are required to be followed.91. It will also be relevant to refer to paragraph 119 of the said judgment.119. The 2003 Act even permits the generating company to supply electricity to a consumer directly. For the said pur- pose what is necessary is to comply with the provisions of the Act, the Rules and the Regulations. Section 14 of the Act categorically provides for grant of licence to any person who is transmitting elec- tricity or distributing supply or under- taking trading therein, indisputably, however, the generator of an electrical energy, although is not subject to the grant of licence but while supplying elec- trical energy to a distributing agency, in turn would be subject to approval and directions of the Commission.92. It can thus clearly be seen that this Court has held that though the Act of 2003 permits the generating company to supply electricity to a consumer directly, and that the generator of an electrical energy is not subject to the grant of license, but while supplying electrical energy to a distributing agency, in turn, it would be subject to approval and directions of the Commission.93. We are, therefore, of the view that the said judgment is of no assistance to the case sought to be advanced by the appellants – DISCOMS. On the contrary, we find that the view that is being taken by us is fortified by the following observations of this Court in the case of Tata Power Company Limited (supra):87. …. The agreement of distribution (PPA) being subject to approval, indis- putably the Commission would have the public interest in mind. It has power to approve an MoU which sub-serves the public interest. It, while granting such approval may also take into considera- tion the question as to whether the terms to be agreed are fair and just.*** *** ***111. Section 86(1)(b) provides for regula- tion of electricity purchase and procure- ment process of distribution licensees. In respect of generation its function is to determine the tariff for generation as also in relation to supply, transmission and wheeling of electricity. Clause (b) of sub--section (1) of Section 86 provides to regulate electricity purchase and pro- curement process of distribution li- censees including the price at which the electricity shall be procured from the generating companies or licensees or from other sources through agreements. As a part of the regulation it can also ad- judicate upon disputes between the li- censees and generating companies in re- gard to the implementation, application or interpretation of the provisions of the said agreement.95. Another argument made on the basis of Section 21 of the Reform Act is also not tenable.96. It could thus be seen that any of the agreements mentioned in sub--sections (1), (2), (3) or (4) of Section 21 would be void unless they are made with the consent of the Commission or subject to such consent. Undisputedly, understanding this legal position, O.P. No.19 of 2016 came to be filed by the appellants – DISCOMS, so as to obtain approval of the State Commission for the PPA entered into by them with HNPCL.97. Insofar as the reliance placed on the provision of Regulation 5.2 of the Tariff Regulations is concerned, the same deals with approach to determination of tariff. It could be seen that, whereas Regulation 5.1 of the Tariff Regulations provides that where tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government, the Commission shall adopt such tariff in accordance with the provisions of the Act; Regulation 5.2 of the Tariff Regulations provides that the provisions specified in Part-II of the said Regulation shall apply in determining tariff based on capital cost for supply to a Distribution Licensee. Part-II of the Tariff Regulations deals with Filing Details and Tariff Determination. Regulation 9 requires that each application where tariff is to be determined based on capital cost shall include various details duly accompanied by supporting data and documentary and other evidence regarding Fixed Costs, Variable Costs and Norms of operation, etc. Regulation 10 of the Tariff Regulations requires the tariff to be determined in accordance with the norms specified under the said Regulations, guided by the principles and methodologies specified in CERC (Terms and Conditions of Tariff) Regulations, 2004, as amended from time to time. The Regulations contain detailed guidelines, as to what shall be the component of tariff and as to how the capital cost and tariff is to be determined.98. We find that such an argument at the behest of a party, which has discarded HNPCL from the bidding process, though it had emerged as the successful L--2 bidder, does not hold water and we have no hesitation to say that the appellants – DISCOMS approach is of approbate and reprobate.99. In any event, we find that the State Commission has totally erred in dismissing O.P. No.21 of 2015 filed by HNPCL. Perusal of Section 64 of the Act of 2003 would reveal that even a Generating Company is entitled to make an application for determination of tariff under Section 62 of the Act of 2003. As such, irrespective of the question, as to whether an application for withdrawal of O.P. No.19 of 2016 filed by the appellants - DISCOMS could have been entertained, the State Commission was wholly unjustified in dismissing O.P. No.21 of 2015 filed by HNPCL. In any case, we have held that in the facts of the present case and, particularly, taking into consideration the conduct of the appellants – DISCOMS, the APTEL has rightly held that the appellants – DISCOMS could not have been permitted to withdraw O.P. No.19 of 2016.100. Undisputedly, the appellants – DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India. Every action of a State is required to be guided by the touch-stone of non-arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country. The Public Authority is therefore required to exercise the powers only for the public good.101. We may gainfully refer to the following observations of this Court in the case of Kumari Shrilekha Vidyarthi and others v. State of U.P. and others (1991) 1 SCC 212 :27. Unlike a private party whose acts un- informed by reason and influenced by per- sonal predilections in contractual matters may result in adverse consequences to it alone without affecting the public interest, any such act of the State or a public body even in this field would adversely affect the public interest. Every holder of a public of- fice by virtue of which he acts on behalf of the State or public body is ultimately ac- countable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public inter- est. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. With the diversification of State activity in a Welfare State requiring the State to discharge its wide ranging functions even through its several instrumentalities, which requires entering into contracts also, it would be unreal and not pragmatic, apart from being unjustified to exclude contractual matters from the sphere of State actions required to be non-arbitrary and justified on the touch- stone of Article 14.28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ulti- mate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial re- view to test its validity on the anvil of Arti- cle 14.103. Recently, this Court in the case of Indian Oil Corporation Limited and others v. Shashi Prabha Shukla and another (2018) 12 SCC 85, after referring to earlier judgments of this Court on the present issue has observed thus:33. Jurisprudentially thus, as could be gleaned from the above legal enuncia- tions, a public authority in its dealings has to be fair, objective, non-arbitrary, transparent and non-discriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be un- regulated or unbridled. Any decision or action contrary to these functional pre- cepts would be at the pain of invalidation thereof. The State and its instrumentali- ties, be it a public authority, either as an individual or a collective has to essen- tially abide by this inalienable and non- negotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations. In exercise of uncontrolled discretion and power, it cannot resort to any act to frit- ter, squander and emasculate any public property, be it by way of State largesse or contracts, etc. Such outrages would clearly be unconstitutional and extinctive of the rule of law which forms the bedrock of the constitutional order.104. In the present case, though initially, HNPCL had revived its project in the year 2007 as a Merchant--power plant and offered 25% of electricity to the State, it was the State, which offered to purchase 100% power from HNPCL. HNPCL agreed for the said offer of the State Government. It is clear from the record and, particularly, the letter dated 26th December, 2012, that the State had given various facilities/concessions to HNPCL for execution of its power project. The documents on record would reveal that the State has also allotted thousands of acres of land for the project to HNPCL. It is not in dispute that in pursuance of the MoA of 2013 (dated 17th May, 2013) and the Continuation Agreement of 2016 (dated 28th April, 2016), the entire project has been erected and is operational. Not only this, but from the year 2016 till 14th July, 2020, the power has been purchased by the appellants – DISCOMS from HNPCL. It could thus be seen that after investment of huge resources including the land belonging to the State, the project is complete and has become operational. The question, at this juncture, would be, whether to discard such a project is in the public interest or against it. At the cost of repetition, it may be reiterated, that the determination of the capital cost of the project and the rate of tariff at which the power has to be purchased would always be subject to regulatory control of the State Commission. What has been done by the APTEL is only directing the State Commission to determine the same.105. The record would clearly reveal that from the year 2012 onwards till 4th January, 2018, it was the consistent stand of the State of Andhra Pradesh as well as the APDISCOMS that it would be purchasing 100% power generated from the project of HNPCL. Not only an application being O.P. No.21 of 2015 was filed by HNPCL for determination of capital cost, but also O.P. No.19 of 2016 was filed by the appellants – DISCOMS for grant of approval to the Continuation Agreement dated 28th April, 2016 with the Amended and Restated PPA of 1998. The matters were heard finally on 15th May, 2017 and closed for orders. For some unknown reasons, exclusively within the knowledge of the appellants – DISCOMS, things turned topsy-turvy between 15th May, 2017 and 4th January, 2018, on which date, the appellants – DISCOMS did a somersault and filed applications for withdrawal of O.P. No.19 of 2016 and disposal of O.P. No.21 of 2015. As already discussed hereinabove, every decision of the State is required to be guided by public interest and the power is to be exercised for public good. For reasons unknown, the appellants – DISCOMS took a decision to resile from their earlier stand, due to which, not only the huge investment made by HNPCL would go in waste, but also valuable resources of the public including thousands of acres of land would go in waste. As already discussed hereinabove, the reasons/grounds, which are sought to be given in I.A. No. 1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015, filed on 4th January, 2018, were very much available between 2011 till 15th May, 2017. It is not as if something new has emerged between 15th May, 2017 and 4th January, 2018, which would have entitled the appellants – DISCOMS to resile from their earlier stand. We have no hesitation to hold that the appellants – DISCOMS could not be permitted to change the decision at their whims and fancies and, particularly, when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable.106. We may also gainfully refer to the following observations of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 :25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful ex- cuse. It is an act done wrongfully and wil- fully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prej- udice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is mani- fested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207 ] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49 ] , State of A.P. v. Goverdhan- lal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941 ] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of In- dia v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150] .)107. We have no hesitation to hold that I.A. No.1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015 filed by the appellants – DISCOMS, are acts, which have been done wrongfully and wilfully without reasonable and probable cause. It may not necessarily be an act done out of ill feeling and spite. However, the act is one, affecting public interest and public good, without there being any rational or reasonable basis for the same.108. Though serious allegations of mala fide have been made by HNPCL, we do not find it necessary to go in those allegations. However, in our view, the present case would squarely fit in the realm of legal malice or malice in law.109. In any case, we find that the judgment impugned before us cannot be said to be of such a nature, which can be said to be prejudicial to the interests of any of the parties. What has been done by the APTEL is only to direct the State Commission to dispose of O.P. No.21 of 2015 filed for determination of capital cost and O.P. No.19 of 2016 filed for approval of Amended and Restated PPA (Continuation Agreement) on merits. On remand, the State Commission would be bound to take into consideration all the relevant factors and the contentions to be raised by both the parties before deciding the said O.Ps.110. We therefore find no reason to interfere with the impugned judgment. However, before parting with the judgment, it is necessary to place on record the conduct of the appellants – DISCOMS. Though vide order dated 14th July, 2020, this Court had stayed the impugned judgment passed by the APTEL, vide order dated 21st August, 2020, this Court had clarified that there shall be no stay of the order dated 16th March, 2018 passed by the APTEL. It is not in dispute that in pursuance of the interim order dated 16th March, 2018, passed by the APTEL, the appellants – DISCOMS were purchasing the power at the rate of Rs.3.82 per unit from HNPCL till 14th July, 2020. It is thus clear that in view of the order passed by this Court on 21st August, 2020, the appellants – DISCOMS were required to continue to purchase the power from HNPCL at the rate of Rs.3.82 per unit. Undisputedly, this has not been done. The reason given for the same is that the appellants - DISCOMS had already filed an application for vacation of the order dated 21st August, 2020. By merely filing an application, the appellants – DISCOMS could not have avoided abiding with the order of the APTEL dated 16th March, 2018, as maintained by this Court vide order dated 21st August, 2020. It is brought to our notice that though the appellants – DISCOMS could have purchased the power from HNPCL at the rate of Rs.3.82 per unit in view of the orders passed by the APTEL and by this Court, they have chosen to purchase the power at higher rate from various generators including KSK Mahanadi from whom the power is being purchased at the rate of Rs.4.33 per unit.111. We ask a question to ourselves, as to whether public interest, which is so vociferously pressed into service in the present matter by the appellants – DISCOMS, lies in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi. We strongly deprecate such a conduct of the appellants – DISCOMS, which are instrumentalities of the State. The appellants – DISCOMS, rather than acting in public interest, have acted contrary to public interest. For defying the orders passed by this Court, we could very well have initiated the action against the officials of the appellants – DISCOMS for having committed contempt of this Court, but we refrain ourselves from doing so. | 0 | 16,727 | 7,152 | ### Instruction:
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when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable. 106. We may also gainfully refer to the following observations of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 : 25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful ex- cuse. It is an act done wrongfully and wil- fully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prej- udice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is mani- fested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207 ] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49 ] , State of A.P. v. Goverdhan- lal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941 ] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .) 26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of In- dia v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150] .) 107. We have no hesitation to hold that I.A. No.1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015 filed by the appellants – DISCOMS, are acts, which have been done wrongfully and wilfully without reasonable and probable cause. It may not necessarily be an act done out of ill feeling and spite. However, the act is one, affecting public interest and public good, without there being any rational or reasonable basis for the same. 108. Though serious allegations of mala fide have been made by HNPCL, we do not find it necessary to go in those allegations. However, in our view, the present case would squarely fit in the realm of legal malice or malice in law. 109. In any case, we find that the judgment impugned before us cannot be said to be of such a nature, which can be said to be prejudicial to the interests of any of the parties. What has been done by the APTEL is only to direct the State Commission to dispose of O.P. No.21 of 2015 filed for determination of capital cost and O.P. No.19 of 2016 filed for approval of Amended and Restated PPA (Continuation Agreement) on merits. On remand, the State Commission would be bound to take into consideration all the relevant factors and the contentions to be raised by both the parties before deciding the said O.Ps. 110. We therefore find no reason to interfere with the impugned judgment. However, before parting with the judgment, it is necessary to place on record the conduct of the appellants – DISCOMS. Though vide order dated 14th July, 2020, this Court had stayed the impugned judgment passed by the APTEL, vide order dated 21st August, 2020, this Court had clarified that there shall be no stay of the order dated 16th March, 2018 passed by the APTEL. It is not in dispute that in pursuance of the interim order dated 16th March, 2018, passed by the APTEL, the appellants – DISCOMS were purchasing the power at the rate of Rs.3.82 per unit from HNPCL till 14th July, 2020. It is thus clear that in view of the order passed by this Court on 21st August, 2020, the appellants – DISCOMS were required to continue to purchase the power from HNPCL at the rate of Rs.3.82 per unit. Undisputedly, this has not been done. The reason given for the same is that the appellants - DISCOMS had already filed an application for vacation of the order dated 21st August, 2020. By merely filing an application, the appellants – DISCOMS could not have avoided abiding with the order of the APTEL dated 16th March, 2018, as maintained by this Court vide order dated 21st August, 2020. It is brought to our notice that though the appellants – DISCOMS could have purchased the power from HNPCL at the rate of Rs.3.82 per unit in view of the orders passed by the APTEL and by this Court, they have chosen to purchase the power at higher rate from various generators including KSK Mahanadi from whom the power is being purchased at the rate of Rs.4.33 per unit. 111. We ask a question to ourselves, as to whether public interest, which is so vociferously pressed into service in the present matter by the appellants – DISCOMS, lies in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi. We strongly deprecate such a conduct of the appellants – DISCOMS, which are instrumentalities of the State. The appellants – DISCOMS, rather than acting in public interest, have acted contrary to public interest. For defying the orders passed by this Court, we could very well have initiated the action against the officials of the appellants – DISCOMS for having committed contempt of this Court, but we refrain ourselves from doing so.
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particularly, when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable.106. We may also gainfully refer to the following observations of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 :25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful ex- cuse. It is an act done wrongfully and wil- fully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prej- udice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is mani- fested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207 ] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49 ] , State of A.P. v. Goverdhan- lal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941 ] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .)26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of In- dia v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150] .)107. We have no hesitation to hold that I.A. No.1 of 2018 in O.P. No.19 of 2016 and I.A. No.2 of 2018 in O.P. No.21 of 2015 filed by the appellants – DISCOMS, are acts, which have been done wrongfully and wilfully without reasonable and probable cause. It may not necessarily be an act done out of ill feeling and spite. However, the act is one, affecting public interest and public good, without there being any rational or reasonable basis for the same.108. Though serious allegations of mala fide have been made by HNPCL, we do not find it necessary to go in those allegations. However, in our view, the present case would squarely fit in the realm of legal malice or malice in law.109. In any case, we find that the judgment impugned before us cannot be said to be of such a nature, which can be said to be prejudicial to the interests of any of the parties. What has been done by the APTEL is only to direct the State Commission to dispose of O.P. No.21 of 2015 filed for determination of capital cost and O.P. No.19 of 2016 filed for approval of Amended and Restated PPA (Continuation Agreement) on merits. On remand, the State Commission would be bound to take into consideration all the relevant factors and the contentions to be raised by both the parties before deciding the said O.Ps.110. We therefore find no reason to interfere with the impugned judgment. However, before parting with the judgment, it is necessary to place on record the conduct of the appellants – DISCOMS. Though vide order dated 14th July, 2020, this Court had stayed the impugned judgment passed by the APTEL, vide order dated 21st August, 2020, this Court had clarified that there shall be no stay of the order dated 16th March, 2018 passed by the APTEL. It is not in dispute that in pursuance of the interim order dated 16th March, 2018, passed by the APTEL, the appellants – DISCOMS were purchasing the power at the rate of Rs.3.82 per unit from HNPCL till 14th July, 2020. It is thus clear that in view of the order passed by this Court on 21st August, 2020, the appellants – DISCOMS were required to continue to purchase the power from HNPCL at the rate of Rs.3.82 per unit. Undisputedly, this has not been done. The reason given for the same is that the appellants - DISCOMS had already filed an application for vacation of the order dated 21st August, 2020. By merely filing an application, the appellants – DISCOMS could not have avoided abiding with the order of the APTEL dated 16th March, 2018, as maintained by this Court vide order dated 21st August, 2020. It is brought to our notice that though the appellants – DISCOMS could have purchased the power from HNPCL at the rate of Rs.3.82 per unit in view of the orders passed by the APTEL and by this Court, they have chosen to purchase the power at higher rate from various generators including KSK Mahanadi from whom the power is being purchased at the rate of Rs.4.33 per unit.111. We ask a question to ourselves, as to whether public interest, which is so vociferously pressed into service in the present matter by the appellants – DISCOMS, lies in purchasing the power at the rate of Rs.3.82 per unit from HNPCL or by purchasing it at the rate of Rs.4.33 per unit from KSK Mahanadi. We strongly deprecate such a conduct of the appellants – DISCOMS, which are instrumentalities of the State. The appellants – DISCOMS, rather than acting in public interest, have acted contrary to public interest. For defying the orders passed by this Court, we could very well have initiated the action against the officials of the appellants – DISCOMS for having committed contempt of this Court, but we refrain ourselves from doing so.
|
Satish Chandra Anand Vs. Union of India | of the arguments, and had the matter not been reargued we would, for the petitioners satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.6. The petition is under Art. 32 (1) of the Constitution and so it must be shown that a fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by Arts. 14 and 16 (1).7. Taking Art. 14 first, it must be shown that the petitioner has been discriminated against in the exercise of enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those conferred by Art. 311. He says he has either been dismissed or removed from service without the safeguards which that Article confers. In our opinion, Art. 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of its clauses.8. The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under S. 240, Government of India Act, 1935 the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely removal from service. In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rules which governed, and with modifications still govern the "services" in India because of Art. 313 of the Constitution.9. Part 12 of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes R. 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in R. 49. There is first removal from service" which does not disqualify from future employment" and there is next dismissal from service "which ordinarily disqualifies from future employment.Then follows an Explanation :"The discharge* * *(c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule."These terms are used in the same sense in Art. 311. It follows that the Article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.10. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.11. Article 16 (1) is equally inapplicable. The whole matter rests in contract. When the petitioners first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16 (1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engage in works of a temporary nature, as any other employer.12. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under Art. 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed.13. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, | 0[ds]7. Taking Art. 14 first, it must be shown that the petitioner has been discriminated against in the exercise of enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those conferred by Art. 311. He says he has either been dismissed or removed from service without the safeguards which that Article confers. In our opinion, Art. 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of itsterms are used in the same sense in Art. 311. It follows that the Article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.11. Article 16 (1) is equally inapplicable. The whole matter rests in contract. When the petitioners first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16 (1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engage in works of a temporary nature, as any other employer.12. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under Art. 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed. | 0 | 1,779 | 697 | ### Instruction:
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of the arguments, and had the matter not been reargued we would, for the petitioners satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.6. The petition is under Art. 32 (1) of the Constitution and so it must be shown that a fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by Arts. 14 and 16 (1).7. Taking Art. 14 first, it must be shown that the petitioner has been discriminated against in the exercise of enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those conferred by Art. 311. He says he has either been dismissed or removed from service without the safeguards which that Article confers. In our opinion, Art. 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of its clauses.8. The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under S. 240, Government of India Act, 1935 the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely removal from service. In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rules which governed, and with modifications still govern the "services" in India because of Art. 313 of the Constitution.9. Part 12 of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes R. 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in R. 49. There is first removal from service" which does not disqualify from future employment" and there is next dismissal from service "which ordinarily disqualifies from future employment.Then follows an Explanation :"The discharge* * *(c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule."These terms are used in the same sense in Art. 311. It follows that the Article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.10. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.11. Article 16 (1) is equally inapplicable. The whole matter rests in contract. When the petitioners first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16 (1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engage in works of a temporary nature, as any other employer.12. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under Art. 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed.13. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time,
### Response:
0
### Explanation:
7. Taking Art. 14 first, it must be shown that the petitioner has been discriminated against in the exercise of enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those conferred by Art. 311. He says he has either been dismissed or removed from service without the safeguards which that Article confers. In our opinion, Art. 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of itsterms are used in the same sense in Art. 311. It follows that the Article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.11. Article 16 (1) is equally inapplicable. The whole matter rests in contract. When the petitioners first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16 (1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engage in works of a temporary nature, as any other employer.12. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under Art. 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed.
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Jain Exports (P) Ltd. & Anr Vs. Union Of India & Ors | The items mentioned therein are:—It is thus clear that if ‘coconut oil’ of the industrial variety was covered by paragraph 5 of Appendix 9, then it would not have been included in Appendix 10 and, therefore, could not have been imported under OGL.4. In Appendix 9, no classification of coconut oil is given and, therefore, all varieties of coconut oil should be taken as covered by the term. There is no warrant for the assumptions that item 1 of paragraph 5 of Appendix 9 covered only, the edible variety when ‘coconut oil’ as such has been mentioned. It is not disputed that ‘coconut oil’ without anything more could cover both the edible as also the non-edible (commercial or industrial) varieties. When a customer goes to the market and asks for coconut oil to buy, he is not necessarily supplied the edible variety. Coconut oil is put to less of edible use than non-edible. Reliance has been placed on the entry in the Import Policy of 1981-82 where in paragraph 5 of Appendix 9 it has been said thus:—“In the case of the following items, whether edible or non-edible, import will be made only by the S.T.C...............” (1) Coconut oil.......................................................... “All other oils/seeds, whether edible or non-edible, not specifically mentioned above or elsewhere in this policy, will also be imported only by S.T.C. under these provisions.” In our view no support can be had for the contention advanced by appellants’ learned counsel from the change in the language of paragraph 5 in the Import Policy of the subsequent year. Whatever may have been the reason for specifying ‘edible and non-edible’ classification in 1981-82, if ‘coconut oil’ takes within its fold all varieties of it, it must follow that in 1980-81, all varieties of coconut oil were included in paragraph 5 of Appendix 9. It is, in our opinion, unnecessary to refer to authorities and precedents to support such an obvious conclusion. 5. Similarly no support is available from the communication by way of reply received by the appellants from the S.T.C. to the effect that import of edible coconut oil alone was canalised through it. When the question before us is as to what exactly was the ambit of the entry No. 1 in paragraph 5 of Appendix 9, the letter of the S.T.C. has no light to throw and the matter has to be resolved with reference to broader aspects than the letter of the Corporation. Nor can that letter or the representation contained therein be used to build up a plea of estoppel. The S.T.C. was not competent to bind the Customs authorities in respect of their statutory functioning and if on actual interpretation it turns out that ‘coconut oil’ covered what the appellants have imported, the fact situation cannot take a different turn on account of the letter of the S.T.C. At the most, it may have some relevant when the quantum of redemption fine is considered by the Tribunal in terms of the direction of the High Court. 6. Massive arguments were built up by learned counsel for the appellants on the basis that the decision of the Central Board and the Central Government rendered in similar matters were binding on the collector and he could not have acted to the contrary. Several Precedents have been cited during the hearing. In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi-judicial Tribunals are also bound by this discipline. 7.In Broome v. Cassell and Co. (1972) 1 All.ER 801, the Lord Chancellor delivering the opinion of the House observed: “I hope it will never be necessary to say so again that in the hierarchical system of Courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.” This Court in Kaushalya Devi Bogra v. Land Acquisition Officer, (1984) 2 SCC 324 has clearly approved this position. There is abundance of authority that quasi-judicial Tribunals too are bound by this rule. 8. That, however, does not assist the appellants at all. It may be that the Collector of Customs should have felt bound by the decision of the Board or the Central Government but the matter has passed that stage. What we are now concerned with is not disciplining the Collector in his quasi-judicial conduct but to ascertain what the correct position in the matter is. Very appropriately, appellants’ learned counsel has not found fault with the High Court for not following the quasi-judicial opinion of the Board or the Central Government nor has he pleaded for acceptance of that by us as a precedent. Once on analysis we reach the conclusion that ‘coconut oil’ of every description was covered in paragraph 5 of Appendix 9, the quasi-judicial decision ceases to be relevant. We propose to say no more on this aspect of the submission. 9. What survives for consideration is the argument relating to the vice of breach of natural justice and the vice of collateral pressure of the Import Authorities in the making of the order. We must frankly state that this aspect of the argument has not at all impressed us. It has not been disputed that show cause notices were issued, cause was shown and considered by the statutory authorities. It may be that more of opportunities than extended were expected by the appellants in view of the fact that large stakes were in issue. The observance of the Rules of Natural Justice is not referrable to the fatness of the stake but is essentially related to the demands of a given situation. The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.10. We have not been able to find any breach in the compliance of the statutory procedure. We are not inclined to agree that the role played be Mr. Takht Ram vitiated the order of the Collector. | 0[ds]9. What survives for consideration is the argument relating to the vice of breach of natural justice and the vice of collateral pressure of the Import Authorities in the making of the order. We must frankly state that this aspect of the argument has not at all impressed us. It has not been disputed that show cause notices were issued, cause was shown andby the statutory authorities. It may be that more of opportunities than extended were expected by the appellants in view of the fact that large stakes were in issue. The observance of the Rules of Natural Justice is not referrable to the fatness of the stake but is essentially related to the demands of a given situation. The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.10. We have not been able to find any breach in the compliance of the statutory procedure. We are not inclined to agree that the role played be Mr. Takht Ram vitiated the order of the Collector. | 0 | 2,531 | 195 | ### 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:
The items mentioned therein are:—It is thus clear that if ‘coconut oil’ of the industrial variety was covered by paragraph 5 of Appendix 9, then it would not have been included in Appendix 10 and, therefore, could not have been imported under OGL.4. In Appendix 9, no classification of coconut oil is given and, therefore, all varieties of coconut oil should be taken as covered by the term. There is no warrant for the assumptions that item 1 of paragraph 5 of Appendix 9 covered only, the edible variety when ‘coconut oil’ as such has been mentioned. It is not disputed that ‘coconut oil’ without anything more could cover both the edible as also the non-edible (commercial or industrial) varieties. When a customer goes to the market and asks for coconut oil to buy, he is not necessarily supplied the edible variety. Coconut oil is put to less of edible use than non-edible. Reliance has been placed on the entry in the Import Policy of 1981-82 where in paragraph 5 of Appendix 9 it has been said thus:—“In the case of the following items, whether edible or non-edible, import will be made only by the S.T.C...............” (1) Coconut oil.......................................................... “All other oils/seeds, whether edible or non-edible, not specifically mentioned above or elsewhere in this policy, will also be imported only by S.T.C. under these provisions.” In our view no support can be had for the contention advanced by appellants’ learned counsel from the change in the language of paragraph 5 in the Import Policy of the subsequent year. Whatever may have been the reason for specifying ‘edible and non-edible’ classification in 1981-82, if ‘coconut oil’ takes within its fold all varieties of it, it must follow that in 1980-81, all varieties of coconut oil were included in paragraph 5 of Appendix 9. It is, in our opinion, unnecessary to refer to authorities and precedents to support such an obvious conclusion. 5. Similarly no support is available from the communication by way of reply received by the appellants from the S.T.C. to the effect that import of edible coconut oil alone was canalised through it. When the question before us is as to what exactly was the ambit of the entry No. 1 in paragraph 5 of Appendix 9, the letter of the S.T.C. has no light to throw and the matter has to be resolved with reference to broader aspects than the letter of the Corporation. Nor can that letter or the representation contained therein be used to build up a plea of estoppel. The S.T.C. was not competent to bind the Customs authorities in respect of their statutory functioning and if on actual interpretation it turns out that ‘coconut oil’ covered what the appellants have imported, the fact situation cannot take a different turn on account of the letter of the S.T.C. At the most, it may have some relevant when the quantum of redemption fine is considered by the Tribunal in terms of the direction of the High Court. 6. Massive arguments were built up by learned counsel for the appellants on the basis that the decision of the Central Board and the Central Government rendered in similar matters were binding on the collector and he could not have acted to the contrary. Several Precedents have been cited during the hearing. In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi-judicial Tribunals are also bound by this discipline. 7.In Broome v. Cassell and Co. (1972) 1 All.ER 801, the Lord Chancellor delivering the opinion of the House observed: “I hope it will never be necessary to say so again that in the hierarchical system of Courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.” This Court in Kaushalya Devi Bogra v. Land Acquisition Officer, (1984) 2 SCC 324 has clearly approved this position. There is abundance of authority that quasi-judicial Tribunals too are bound by this rule. 8. That, however, does not assist the appellants at all. It may be that the Collector of Customs should have felt bound by the decision of the Board or the Central Government but the matter has passed that stage. What we are now concerned with is not disciplining the Collector in his quasi-judicial conduct but to ascertain what the correct position in the matter is. Very appropriately, appellants’ learned counsel has not found fault with the High Court for not following the quasi-judicial opinion of the Board or the Central Government nor has he pleaded for acceptance of that by us as a precedent. Once on analysis we reach the conclusion that ‘coconut oil’ of every description was covered in paragraph 5 of Appendix 9, the quasi-judicial decision ceases to be relevant. We propose to say no more on this aspect of the submission. 9. What survives for consideration is the argument relating to the vice of breach of natural justice and the vice of collateral pressure of the Import Authorities in the making of the order. We must frankly state that this aspect of the argument has not at all impressed us. It has not been disputed that show cause notices were issued, cause was shown and considered by the statutory authorities. It may be that more of opportunities than extended were expected by the appellants in view of the fact that large stakes were in issue. The observance of the Rules of Natural Justice is not referrable to the fatness of the stake but is essentially related to the demands of a given situation. The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.10. We have not been able to find any breach in the compliance of the statutory procedure. We are not inclined to agree that the role played be Mr. Takht Ram vitiated the order of the Collector.
### Response:
0
### Explanation:
9. What survives for consideration is the argument relating to the vice of breach of natural justice and the vice of collateral pressure of the Import Authorities in the making of the order. We must frankly state that this aspect of the argument has not at all impressed us. It has not been disputed that show cause notices were issued, cause was shown andby the statutory authorities. It may be that more of opportunities than extended were expected by the appellants in view of the fact that large stakes were in issue. The observance of the Rules of Natural Justice is not referrable to the fatness of the stake but is essentially related to the demands of a given situation. The position here is covered by statutory provisions and it is well settled that Rules of Natural Justice do not supplant but supplement the law.10. We have not been able to find any breach in the compliance of the statutory procedure. We are not inclined to agree that the role played be Mr. Takht Ram vitiated the order of the Collector.
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Madhumoy Madhusudam Boul Vs. State of West Bengal | by the courts below are firstly that the accused was ill treating the deceased and secondly that on the fateful night the accused came in the truck and took the deceased and thereafter only the dead body was found in the jungle. The medical evidence is relied upon to show that it was an unnatural death and was due to violence. As far as the complicity of the accused is concerned, the courts below relied on the evidence of PW 18. If the evidence of PW 18, the sole eyewitness is found to be unreliable, as contended by the learned counsel, then we are left only with one incriminating circumstance namely that the deceased and the accused went together in the truck that is to say she was last seen in the company of the accused. This circumstance by itself cannot bring home the guilt to the accused. 4. The doctor, PW 17, who conducted the post mortem found five injuries and on internal examination he found comminuted fracture of all the bones. He opined that injuries were homicidal in nature and death was due to those injuries. He further submitted that some of the injuries were incidental on being run over by a heavy vehicle. 5. With this background let us examine the evidence of PW 18, the sole eyewitness. On that day he was aged about 20 years. He deposed that he has been working as a cleaner for about one and half years in the truck of which the accused was a driver. Coming to the date of occurrence he deposed that two years ago on the night of Shivaratri the accused drove the truck to his house and came back with his wife from the house. Then he drove the truck to a jungle where he brought down his wife and throttled her to death and then he ran the truck over her body. Thereafter he dragged the body to the jungle on the left of the road. In the cross examination he deposed that while going on duty after causing the death of the deceased the truck which was driven by the accused turned upside down and met with an accident killing one labourer and in this accident this witness was also an accused. He further stated that he was in the truck when it met with an accident. He admitted that he went back to his house and remained there for a period of more than one month and he did not meet anybody nor he told anybody. He further submitted that he met the police officer after two months from the date of accident and gave a statement. Thus it is seen that PW 18 is highly belated witness. Further his version is in conflict with the medical evidence. In the chief examination he stated that the accused in the first instance throttled his wife to death. He stated that the accused after throttling the deceased to death ran the truck over her body. This version appears to be highly artificial. That apart his conduct is highly unnatural. If he had really seen the incident in the manner stated by him, he kept silent for two months, did not inform anybody and what more he states is that he went on his own to the police station and gave a statement. It was simply mentioned that some unknown person has caused the death. PW 18s evidence no doubt has been relied upon by both the courts below. But there are infirmities in his evidence. First of all it is highly doubtful whether he was in the truck on that night. If he was in the truck he must have also received some injuries when it met with an accident and what is more a labourer was also killed. The other infirmity is that he did not inform anybody and he said for two months he never bothered about this thing and he was simply remaining in his house. This is highly unnatural and suspicious. He must have been put up as a witness at a belated stage. Further his version that the accused first throttled her to death is proved to be false as per the medical evidence. Having regard to the fact that he is the sole eyewitness we find his evidence wholly unreliable. If his evidence is eschewed, then we are left only with the evidence of PWs 7, 9, 14 and 20. PWs 7 and 14 are examined to speak about the ill treatment meted out by the accused to his wife. Therefore their evidence does not lead us any further. PW 7 also deposed that he was informed by one Anil Baran Roy, known to him earlier, that on February 17, 1988 the accused came to his house and asked his wife to give water and thereafter she was not seen. His evidence is to the effect that the accused must have taken the deceased along with him. But this is only a conjecture. There remains the evidence of the two witnesses PWs 9 and 20. PW 9 is a resident of Mauza and uncle of the accused. He spoke about the marriage that took place between the accused and the deceased. He further deposed that the deceased was missing for the last two days and he along with Sandhya, sister of the accused went to the police station and gave a report. But this is wholly hearsay evidence as he has not actually seen the accused taking the deceased in the truck. He admitted in the cross examination that it was the first time he is giving a statement in the court. It may not be necessary for us to refer to other witnesses. From the above discussion it can be seen that the evidence of the remaining witnesses is wholly insufficient to bring home the guilt of the accused.6. After giving our careful consideration, we are unable to place any reliance on the evidence of PW 18. | 1[ds]That apart his conduct is highly unnatural. If he had really seen the incident in the manner stated by him, he kept silent for two months, did not inform anybody and what more he states is that he went on his own to the police station and gave a statement. It was simply mentioned that some unknown person has caused the death. PW 18s evidence no doubt has been relied upon by both the courts below. But there are infirmities in his evidence. First of all it is highly doubtful whether he was in the truck on that night. If he was in the truck he must have also received some injuries when it met with an accident and what is more a labourer was also killed. The other infirmity is that he did not inform anybody and he said for two months he never bothered about this thing and he was simply remaining in his house. This is highly unnatural and suspicious. He must have been put up as a witness at a belated stage. Further his version that the accused first throttled her to death is proved to be false as per the medical evidence. Having regard to the fact that he is the sole eyewitness we find his evidence wholly unreliable. If his evidence is eschewed, then we are left only with the evidence of PWs 7, 9, 14 and 20. PWs 7 and 14 are examined to speak about the ill treatment meted out by the accused to his wife. Therefore their evidence does not lead us any further. PW 7 also deposed that he was informed by one Anil Baran Roy, known to him earlier, that on February 17, 1988 the accused came to his house and asked his wife to give water and thereafter she was not seen. His evidence is to the effect that the accused must have taken the deceased along with him. But this is only a conjecture. There remains the evidence of the two witnesses PWs 9 and 20. PW 9 is a resident of Mauza and uncle of the accused. He spoke about the marriage that took place between the accused and the deceased. He further deposed that the deceased was missing for the last two days and he along with Sandhya, sister of the accused went to the police station and gave a report. But this is wholly hearsay evidence as he has not actually seen the accused taking the deceased in the truck. He admitted in the cross examination that it was the first time he is giving a statement in the court. It may not be necessary for us to refer to other witnesses. From the above discussion it can be seen that the evidence of the remaining witnesses is wholly insufficient to bring home the guilt of the accused.6. After giving our careful consideration, we are unable to place any reliance on the evidence of PW 18. | 1 | 1,868 | 533 | ### Instruction:
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by the courts below are firstly that the accused was ill treating the deceased and secondly that on the fateful night the accused came in the truck and took the deceased and thereafter only the dead body was found in the jungle. The medical evidence is relied upon to show that it was an unnatural death and was due to violence. As far as the complicity of the accused is concerned, the courts below relied on the evidence of PW 18. If the evidence of PW 18, the sole eyewitness is found to be unreliable, as contended by the learned counsel, then we are left only with one incriminating circumstance namely that the deceased and the accused went together in the truck that is to say she was last seen in the company of the accused. This circumstance by itself cannot bring home the guilt to the accused. 4. The doctor, PW 17, who conducted the post mortem found five injuries and on internal examination he found comminuted fracture of all the bones. He opined that injuries were homicidal in nature and death was due to those injuries. He further submitted that some of the injuries were incidental on being run over by a heavy vehicle. 5. With this background let us examine the evidence of PW 18, the sole eyewitness. On that day he was aged about 20 years. He deposed that he has been working as a cleaner for about one and half years in the truck of which the accused was a driver. Coming to the date of occurrence he deposed that two years ago on the night of Shivaratri the accused drove the truck to his house and came back with his wife from the house. Then he drove the truck to a jungle where he brought down his wife and throttled her to death and then he ran the truck over her body. Thereafter he dragged the body to the jungle on the left of the road. In the cross examination he deposed that while going on duty after causing the death of the deceased the truck which was driven by the accused turned upside down and met with an accident killing one labourer and in this accident this witness was also an accused. He further stated that he was in the truck when it met with an accident. He admitted that he went back to his house and remained there for a period of more than one month and he did not meet anybody nor he told anybody. He further submitted that he met the police officer after two months from the date of accident and gave a statement. Thus it is seen that PW 18 is highly belated witness. Further his version is in conflict with the medical evidence. In the chief examination he stated that the accused in the first instance throttled his wife to death. He stated that the accused after throttling the deceased to death ran the truck over her body. This version appears to be highly artificial. That apart his conduct is highly unnatural. If he had really seen the incident in the manner stated by him, he kept silent for two months, did not inform anybody and what more he states is that he went on his own to the police station and gave a statement. It was simply mentioned that some unknown person has caused the death. PW 18s evidence no doubt has been relied upon by both the courts below. But there are infirmities in his evidence. First of all it is highly doubtful whether he was in the truck on that night. If he was in the truck he must have also received some injuries when it met with an accident and what is more a labourer was also killed. The other infirmity is that he did not inform anybody and he said for two months he never bothered about this thing and he was simply remaining in his house. This is highly unnatural and suspicious. He must have been put up as a witness at a belated stage. Further his version that the accused first throttled her to death is proved to be false as per the medical evidence. Having regard to the fact that he is the sole eyewitness we find his evidence wholly unreliable. If his evidence is eschewed, then we are left only with the evidence of PWs 7, 9, 14 and 20. PWs 7 and 14 are examined to speak about the ill treatment meted out by the accused to his wife. Therefore their evidence does not lead us any further. PW 7 also deposed that he was informed by one Anil Baran Roy, known to him earlier, that on February 17, 1988 the accused came to his house and asked his wife to give water and thereafter she was not seen. His evidence is to the effect that the accused must have taken the deceased along with him. But this is only a conjecture. There remains the evidence of the two witnesses PWs 9 and 20. PW 9 is a resident of Mauza and uncle of the accused. He spoke about the marriage that took place between the accused and the deceased. He further deposed that the deceased was missing for the last two days and he along with Sandhya, sister of the accused went to the police station and gave a report. But this is wholly hearsay evidence as he has not actually seen the accused taking the deceased in the truck. He admitted in the cross examination that it was the first time he is giving a statement in the court. It may not be necessary for us to refer to other witnesses. From the above discussion it can be seen that the evidence of the remaining witnesses is wholly insufficient to bring home the guilt of the accused.6. After giving our careful consideration, we are unable to place any reliance on the evidence of PW 18.
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That apart his conduct is highly unnatural. If he had really seen the incident in the manner stated by him, he kept silent for two months, did not inform anybody and what more he states is that he went on his own to the police station and gave a statement. It was simply mentioned that some unknown person has caused the death. PW 18s evidence no doubt has been relied upon by both the courts below. But there are infirmities in his evidence. First of all it is highly doubtful whether he was in the truck on that night. If he was in the truck he must have also received some injuries when it met with an accident and what is more a labourer was also killed. The other infirmity is that he did not inform anybody and he said for two months he never bothered about this thing and he was simply remaining in his house. This is highly unnatural and suspicious. He must have been put up as a witness at a belated stage. Further his version that the accused first throttled her to death is proved to be false as per the medical evidence. Having regard to the fact that he is the sole eyewitness we find his evidence wholly unreliable. If his evidence is eschewed, then we are left only with the evidence of PWs 7, 9, 14 and 20. PWs 7 and 14 are examined to speak about the ill treatment meted out by the accused to his wife. Therefore their evidence does not lead us any further. PW 7 also deposed that he was informed by one Anil Baran Roy, known to him earlier, that on February 17, 1988 the accused came to his house and asked his wife to give water and thereafter she was not seen. His evidence is to the effect that the accused must have taken the deceased along with him. But this is only a conjecture. There remains the evidence of the two witnesses PWs 9 and 20. PW 9 is a resident of Mauza and uncle of the accused. He spoke about the marriage that took place between the accused and the deceased. He further deposed that the deceased was missing for the last two days and he along with Sandhya, sister of the accused went to the police station and gave a report. But this is wholly hearsay evidence as he has not actually seen the accused taking the deceased in the truck. He admitted in the cross examination that it was the first time he is giving a statement in the court. It may not be necessary for us to refer to other witnesses. From the above discussion it can be seen that the evidence of the remaining witnesses is wholly insufficient to bring home the guilt of the accused.6. After giving our careful consideration, we are unable to place any reliance on the evidence of PW 18.
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Col. D.D. Joshi and Others Vs. Union of India and Others | in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on Purshotam Lal and others v. Union of India &Anr (2)., wherein this Court held that when a Pay Commission snakes recommendations and the Government accepts the same, it is hound to implement the recommendations in respect of all Government employees. And if it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Constitution It is difficult to appreciate how this decision would help the petitioners. The benefit of ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlier occasion.9. It was then contended that if extending the benefit of enlarged period of ante-dating to all irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti &Ors. (1). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of ante-dating is claimed as a condition of service uniformally applicable to all person s qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condition subject to which benefit can be claimed and it is that it is available at the time of entering the ser vice as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification. And undoubtedly an inducement held out to future entrants, if extended to those who had entered more than 25 years ago, the inducement so offered would adversely affect a large number of persons who need not be subjected to unfair treatment for no fault . Of theirs. There are hundreds of officers, in all- 1227, who are holding post graduate qualifications today, may be having acquired the same after joining service but there being no qualitative difference in the service rendered by them and those who entered with PG qualification, way-back in 1948 or 1949 or 1953, if the contention is accepted. the petitioners would score a march over others having now the same qualification thereby giving the petitioners an unfair advantage which ought not to be given, if approaching the matter A from that angle, would not violate any constitutional mandate.The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that:"The seniority officers who joined with PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant of requisite ante-date so that they do not become junior to officers w ho have joined later with equivalent PG qualifications."It was urged that the provision in the note would benefit some of those who joined with PG qualifications even prior to April l, 1978 in a limited way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair play in action. An illustration would expose the fallacy underlying the submission. A joined with PG qualification and six months full time service on 31st March, 1978, B joined with the same qualification and eligibility on April 2nd, 1978. Both are wholly similarly situated. A would get ante-date benefit of 1-1/2 years and B would qualify for 2 1/2 years. B though a later entrant with same qualifications would score a march over A. This would be extremely unfair. To protect such cases, it is provided that those who joined with PG qualifications during 1-1/2 years prior to April 1, 1978 will be protected by giving of requisite ante- date to protect their seniority over later entrants who qualified for larger period of ante-dating. It is idle to contend that limited retrospectivity is given to impugned Army Instruction. It is in fact a case of marginal adjustment showing fair play in action.On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list , those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no relief can be given to them. We would not accept this contention for two reasons: (i) that the decision in General Manager, South Central Railway Secundrabad etc. would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. There fore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.10 | 0[ds]In the present case, there is no division of a homogeneous class by the choice of the date. The object underlying the benefit extended to the new entrants determines the choice of date. Inducement for attracting fresh recruits from the market must come into force by a certain date. The employer can legitimately determine, keeping in view the demands of public service, from which date the document will be available. In such a situation choice of date is not wholly arbitrary and has not the tendency to devide a homogeneous class. We see no classification amongst those who enter A MC after acquiring Postgraduate qualification determined by length of ante-dating benefit because each one at the relevant time obtained the advantage of ante-dating as it was then in force. There is no differential treatment. There is no division of a homogeneous class. The distinct possibility is that if petitioners contention is accepted there would be vertical splitting of a homogeneous class. It is therefore, difficult to accept the contention that the note under the impugned amended Army Instruction is violative of Art. 14 or Art. 16.It was next contended that the Third Pay Commission recommended that doctors entering service of the Union of India with post-graduate qualifications should be suitably recompensated for the time spent in acquiring these qualifications. It was urged that this recommendation was implemented in Central Government Health Service and it is this recomtnendation which has promoted the Union of India to enlarge the period of ante-dating. It was urged that by limiting the benefit only to those who would be commissioned on or after April 1, 1971, the respondents are guilty of according discriminatory treatment in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on Purshotam Lal and others v. Union of India &Anr (2)., wherein this Court held that when a Pay Commission snakes recommendations and the Government accepts the same, it is hound to implement the recommendations in respect of all Government employees. And if it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Constitution It is difficult to appreciate how this decision would help the petitioners. The benefit of ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlierwas then contended that if extending the benefit of enlarged period of ante-dating to all irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti &Ors. (1). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of ante-dating is claimed as a condition of service uniformally applicable to all person s qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condition subject to which benefit can be claimed and it is that it is available at the time of entering the ser vice as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification. And undoubtedly an inducement held out to future entrants, if extended to those who had entered more than 25 years ago, the inducement so offered would adversely affect a large number of persons who need not be subjected to unfair treatment for no fault . Of theirs. There are hundreds of officers, in all- 1227, who are holding post graduate qualifications today, may be having acquired the same after joining service but there being no qualitative difference in the service rendered by them and those who entered with PG qualification, way-back in 1948 or 1949 or 1953, if the contention is accepted. the petitioners would score a march over others having now the same qualification thereby giving the petitioners an unfair advantage which ought not to be given, if approaching the matter A from that angle, would not violate any constitutional mandate.The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that:"The seniority officers who joined with PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant of requisite ante-date so that they do not become junior to officers w ho have joined later with equivalent PG qualifications."It was urged that the provision in the note would benefit some of those who joined with PG qualifications even prior to April l, 1978 in a limited way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair play in action. An illustration would expose the fallacy underlying the submission. A joined with PG qualification and six months full time service on 31st March, 1978, B joined with the same qualification and eligibility on April 2nd, 1978. Both are wholly similarly situated. A would get ante-date benefit of 1-1/2 years and B would qualify for 2 1/2 years. B though a later entrant with same qualifications would score a march over A. This would be extremely unfair. To protect such cases, it is provided that those who joined with PG qualifications during 1-1/2 years prior to April 1, 1978 will be protected by giving of requisite ante- date to protect their seniority over later entrants who qualified for larger period of ante-dating. It is idle to contend that limited retrospectivity is given to impugned Army Instruction. It is in fact a case of marginal adjustment showing fair play in action.On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list , those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no relief can be given to them. We would not accept this contention for two reasons: (i) that the decision in General Manager, South Central Railway Secundrabad etc. would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. There fore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there. | 0 | 6,456 | 1,382 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on Purshotam Lal and others v. Union of India &Anr (2)., wherein this Court held that when a Pay Commission snakes recommendations and the Government accepts the same, it is hound to implement the recommendations in respect of all Government employees. And if it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Constitution It is difficult to appreciate how this decision would help the petitioners. The benefit of ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlier occasion.9. It was then contended that if extending the benefit of enlarged period of ante-dating to all irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti &Ors. (1). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of ante-dating is claimed as a condition of service uniformally applicable to all person s qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condition subject to which benefit can be claimed and it is that it is available at the time of entering the ser vice as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification. And undoubtedly an inducement held out to future entrants, if extended to those who had entered more than 25 years ago, the inducement so offered would adversely affect a large number of persons who need not be subjected to unfair treatment for no fault . Of theirs. There are hundreds of officers, in all- 1227, who are holding post graduate qualifications today, may be having acquired the same after joining service but there being no qualitative difference in the service rendered by them and those who entered with PG qualification, way-back in 1948 or 1949 or 1953, if the contention is accepted. the petitioners would score a march over others having now the same qualification thereby giving the petitioners an unfair advantage which ought not to be given, if approaching the matter A from that angle, would not violate any constitutional mandate.The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that:"The seniority officers who joined with PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant of requisite ante-date so that they do not become junior to officers w ho have joined later with equivalent PG qualifications."It was urged that the provision in the note would benefit some of those who joined with PG qualifications even prior to April l, 1978 in a limited way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair play in action. An illustration would expose the fallacy underlying the submission. A joined with PG qualification and six months full time service on 31st March, 1978, B joined with the same qualification and eligibility on April 2nd, 1978. Both are wholly similarly situated. A would get ante-date benefit of 1-1/2 years and B would qualify for 2 1/2 years. B though a later entrant with same qualifications would score a march over A. This would be extremely unfair. To protect such cases, it is provided that those who joined with PG qualifications during 1-1/2 years prior to April 1, 1978 will be protected by giving of requisite ante- date to protect their seniority over later entrants who qualified for larger period of ante-dating. It is idle to contend that limited retrospectivity is given to impugned Army Instruction. It is in fact a case of marginal adjustment showing fair play in action.On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list , those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no relief can be given to them. We would not accept this contention for two reasons: (i) that the decision in General Manager, South Central Railway Secundrabad etc. would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. There fore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.10
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according discriminatory treatment in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on Purshotam Lal and others v. Union of India &Anr (2)., wherein this Court held that when a Pay Commission snakes recommendations and the Government accepts the same, it is hound to implement the recommendations in respect of all Government employees. And if it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Constitution It is difficult to appreciate how this decision would help the petitioners. The benefit of ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlierwas then contended that if extending the benefit of enlarged period of ante-dating to all irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti &Ors. (1). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of ante-dating is claimed as a condition of service uniformally applicable to all person s qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condition subject to which benefit can be claimed and it is that it is available at the time of entering the ser vice as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification. And undoubtedly an inducement held out to future entrants, if extended to those who had entered more than 25 years ago, the inducement so offered would adversely affect a large number of persons who need not be subjected to unfair treatment for no fault . Of theirs. There are hundreds of officers, in all- 1227, who are holding post graduate qualifications today, may be having acquired the same after joining service but there being no qualitative difference in the service rendered by them and those who entered with PG qualification, way-back in 1948 or 1949 or 1953, if the contention is accepted. the petitioners would score a march over others having now the same qualification thereby giving the petitioners an unfair advantage which ought not to be given, if approaching the matter A from that angle, would not violate any constitutional mandate.The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that:"The seniority officers who joined with PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant of requisite ante-date so that they do not become junior to officers w ho have joined later with equivalent PG qualifications."It was urged that the provision in the note would benefit some of those who joined with PG qualifications even prior to April l, 1978 in a limited way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair play in action. An illustration would expose the fallacy underlying the submission. A joined with PG qualification and six months full time service on 31st March, 1978, B joined with the same qualification and eligibility on April 2nd, 1978. Both are wholly similarly situated. A would get ante-date benefit of 1-1/2 years and B would qualify for 2 1/2 years. B though a later entrant with same qualifications would score a march over A. This would be extremely unfair. To protect such cases, it is provided that those who joined with PG qualifications during 1-1/2 years prior to April 1, 1978 will be protected by giving of requisite ante- date to protect their seniority over later entrants who qualified for larger period of ante-dating. It is idle to contend that limited retrospectivity is given to impugned Army Instruction. It is in fact a case of marginal adjustment showing fair play in action.On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list , those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no relief can be given to them. We would not accept this contention for two reasons: (i) that the decision in General Manager, South Central Railway Secundrabad etc. would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. There fore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.
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Damyanti Naranga Vs. The Union Of India And Others | the functions, properties etc. of the Society have passed under the Act. There are three reasons why this alternative submission cannot be accepted as ensuring the validity of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law. Constitution of Societies is under list II of the Seventh Schedule Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan Allahabad was an institution of national importance. The Institution that was declared was the Society itself. It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance. There can, of course, be cases where a Society may be running a college, a school or some other like Institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such. In the present case, what Section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society intact, but deprives it of all its functions and properties and transfers them to a newly constituted body viz, the Sammelan, as defined uncle the Act. This Sammelan is itself, body corporate, and that Sammelan has never been declared as an institution of national importance. The only institution that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected is that, if we were to hold that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19 (1) (f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus, deprived of all its properties by the Act. Such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under Section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore. had the right to hold the property under Article 19 (1) (f) and they having been deprived of that property, have rightly approached the Courts for redress of their grievance. 14. In this connection, counsel for the respondents relied on the decision of this Court in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi (1962) Supp 1 SCR 156 = (AIR 1962 SC 458 ) where the Board of Trustees of the Ayurvedic and Unani Tibia College, Delhi was dissolved by the Tibia College Act, 1952, and the Property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act. The Court held that there was no violation of the fundamental rights guaranteed by Article 19 (1) (f) or Article 31. That decision, however, proceeded on the basis that the property of the original Society registered under the Societies Registration Act had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of 1860. In these circumstances, it was held that no one could complain that his right to property under Article 31 or his right to hold the property under Article 19 (1) (f) had been violated by the impugned Act. In the present case, the applicability of Article 19 (1) (f) is being considered by us on the assumption that the old Society still exists as it was and, yet, all its properties have been transferred to the Sammelan. If the Society still exists so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property, which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as a reasonable restriction under Article 19 (5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid. 15. | 1[ds]We consider it convenient to first deal with the case as was specifically put forward in the counter-affidavits. In these counter-affidavits, the position taken up is that, having declared the old Hindi Sahitya Sammelan, which was a Society registered under the Societies Registration Act, 1860, as an institution of national importance Parliament has proceeded to legislate in respect of it under Entry 63 of List I of the Seventh Schedule in order that its administration may not suffer as a result of the quarrels that were going on inter se between the members of the Society.It wasfor this purpose that a first Governing Body was constituted, to take over the management temporarily. The Act was designed to reconstitute the Sammelan in such manner that it could work successfully and without difficulties and, in making provision for this purpose, all members of the old Society were included as members of the Sammelan, so that their right of forming association may not be taken away from them. The Society was never dissolved, instead of the Society remaining a body registered under the Societies Registration Act, it was converted into a statutory Sammelan under the ActIt will, thus, be seen that the Sammelan, which has come into existence under the Act, is not identical with the Sammelan which was registered as a Society under the Societies Registration Act, 1860. Certain persons have been added as members by the Act and by the Rules. Admission of future members is no longer at the choice of the original members who had formed the Association. Persons, in whose admission as members the members of the Society had no hand, can become members and get the right of associating with them in the Sammelan, without the original members having any right to object. This is clear interference with the right to form an association which had been exercised by the members of the Society by forming the Society with its constitution, under which they were members and future members could only come in as a result of their choice by being elected by their Working Committee. We are unable to agree with the High Court that the new Sammelan, as constituted under the Act, is identical with the Society and that all the rights of forming an association, which were being exercised by members of the Society, have been kept intact under the ActIt is true that it has been held by this Court that, after an Association has been formed and the right under Article 19 (1) (c) has been exercised by the members forming it they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society; what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the Voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by Art. 19 (1) (c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated by rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition, so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court, though not in plain words, in the case of G. K Ghosh v. E. X Joseph, (1963) Supp 1 SCR 789 = (AIR 1963 SC 812 )Article 19 (4), on the face of it; cannot be called in aid to claim validity for the Act. Under Article 19 (4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. It has not been contended on behalf of the respondent nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Act was in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. Not being protected under Article 19 (4), it must be held that the provision contained in the Act for reconstituting the Society into the Sammelan is void. Once that section is declared void, the whole Act becomes ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the ActThere are three reasons why this alternative submission cannot be accepted as ensuring the validity of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law. Constitution of Societies is under list II of the Seventh Schedule Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan Allahabad was an institution of national importance. The Institution that was declared was the Society itself.It wasnot a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance. There can, of course, be cases where a Society may be running a college, a school or some other like Institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such. In the present case, what Section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society intact, but deprives it of all its functions and properties and transfers them to a newly constituted body viz, the Sammelan, as defined uncle the Act. This Sammelan is itself, body corporate, and that Sammelan has never been declared as an institution of national importance. The only institution that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected is that, if we were to hold that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19 (1) (f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus, deprived of all its properties by the Act. Such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under Section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore. had the right to hold the property under Article 19 (1) (f) and they having been deprived of that property, have rightly approached the Courts for redress of their grievanceIn the present case, the applicability of Article 19 (1) (f) is being considered by us on the assumption that the old Society still exists as it was and, yet, all its properties have been transferred to the Sammelan. If the Society still exists so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property, which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as a reasonable restriction under Article 19 (5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid. | 1 | 5,733 | 1,946 | ### Instruction:
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the functions, properties etc. of the Society have passed under the Act. There are three reasons why this alternative submission cannot be accepted as ensuring the validity of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law. Constitution of Societies is under list II of the Seventh Schedule Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan Allahabad was an institution of national importance. The Institution that was declared was the Society itself. It was not a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance. There can, of course, be cases where a Society may be running a college, a school or some other like Institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such. In the present case, what Section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society intact, but deprives it of all its functions and properties and transfers them to a newly constituted body viz, the Sammelan, as defined uncle the Act. This Sammelan is itself, body corporate, and that Sammelan has never been declared as an institution of national importance. The only institution that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected is that, if we were to hold that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19 (1) (f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus, deprived of all its properties by the Act. Such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under Section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore. had the right to hold the property under Article 19 (1) (f) and they having been deprived of that property, have rightly approached the Courts for redress of their grievance. 14. In this connection, counsel for the respondents relied on the decision of this Court in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi (1962) Supp 1 SCR 156 = (AIR 1962 SC 458 ) where the Board of Trustees of the Ayurvedic and Unani Tibia College, Delhi was dissolved by the Tibia College Act, 1952, and the Property, which had vested in the Board of Trustees, passed to the newly constituted Board under the impugned Act. The Court held that there was no violation of the fundamental rights guaranteed by Article 19 (1) (f) or Article 31. That decision, however, proceeded on the basis that the property of the original Society registered under the Societies Registration Act had vested in the Board of Trustees which had been dissolved and the property, thereafter, did not vest in the members of the Society in view of the provisions of the Act of 1860. In these circumstances, it was held that no one could complain that his right to property under Article 31 or his right to hold the property under Article 19 (1) (f) had been violated by the impugned Act. In the present case, the applicability of Article 19 (1) (f) is being considered by us on the assumption that the old Society still exists as it was and, yet, all its properties have been transferred to the Sammelan. If the Society still exists so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property, which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as a reasonable restriction under Article 19 (5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid. 15.
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it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association. This aspect was recognised by this Court, though not in plain words, in the case of G. K Ghosh v. E. X Joseph, (1963) Supp 1 SCR 789 = (AIR 1963 SC 812 )Article 19 (4), on the face of it; cannot be called in aid to claim validity for the Act. Under Article 19 (4), reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. It has not been contended on behalf of the respondent nor could it be contended that this alteration of the constitution of the Society in the manner laid down by the Act was in the interests of the sovereignty and integrity of India, or in the interests of public order or morality. Not being protected under Article 19 (4), it must be held that the provision contained in the Act for reconstituting the Society into the Sammelan is void. Once that section is declared void, the whole Act becomes ineffective inasmuch as the formation of the new Sammelan is the very basis for all the other provisions contained in the ActThere are three reasons why this alternative submission cannot be accepted as ensuring the validity of the Act. The first is that the specific case taken by the respondents has been that the Act reconstitutes the Society and does not create a separate and independent body in the form of a new Sammelan Secondly, even if it be accepted that a new Sammelan has been constituted by the Act, the question will arise of the legislative competence of Parliament to pass such a law. Constitution of Societies is under list II of the Seventh Schedule Parliament purported to exercise legislative power under Entry 63 of List I on the basis of a declaration that the Hindi Sahitya Sammelan Allahabad was an institution of national importance. The Institution that was declared was the Society itself.It wasnot a case where the Society could be distinguished from some other institution which might have been declared as an institution of national importance. There can, of course, be cases where a Society may be running a college, a school or some other like Institution, in which case Parliament may declare that particular institution as of national importance, without declaring the Society as such. In the present case, what Section 2 of the Act did was to declare the Society itself as an institution of national importance and, consequently, Parliament became competent to legislate in respect of the Society. On the interpretation now sought to be put forward, the Act keeps that Society intact, but deprives it of all its functions and properties and transfers them to a newly constituted body viz, the Sammelan, as defined uncle the Act. This Sammelan is itself, body corporate, and that Sammelan has never been declared as an institution of national importance. The only institution that was declared as of national importance was the Society which, of course, earlier, carried the same name as the new Sammelan. Parliament was, therefore, not competent to legislate in respect of this newly constituted Sammelan which, at no stage, had been declared as an institution of national importance. The third reason why this submission must be rejected is that, if we were to hold that Parliament passed this Act so as to transfer all the properties and assets of the Society to the Sammelan, the Act would contravene Article 19 (1) (f) of the Constitution. On this interpretation, what the Act purports to do is to take away all the properties of the Society, leaving the Society as an existing body, and give them the new Sammelan. This Sammelan is a new, separate and distinct legal entity from the Society. The Society is, thus, deprived of all its properties by the Act. Such a law depriving the Society of its properties altogether cannot be held to be a reasonable restriction in the public interest on the right of the Society to hold the property. The property, under Section 5 of the Societies Registration Act, 1860, vested in the Governing Body of the Society. The members of the Governing Body, therefore. had the right to hold the property under Article 19 (1) (f) and they having been deprived of that property, have rightly approached the Courts for redress of their grievanceIn the present case, the applicability of Article 19 (1) (f) is being considered by us on the assumption that the old Society still exists as it was and, yet, all its properties have been transferred to the Sammelan. If the Society still exists so does its Governing Body in whom the property of the Society vested. The Act, thus, deprives the members of the Governing Body of the property, which still continued to vest in them in spite of the passing of the Act. This total deprivation of property instead of regulating the management of the affairs of the Society or its properties, cannot clearly be justified as a reasonable restriction in public interest. It is true that, at the time when the Act was passed, litigation was going on between the members of the Society, and the affairs of the Society were probably in a mess. The remedy however, could not lie in depriving the Society of its property altogether. Reasonable restrictions could have been imposed so as to ensure the proper preservation of the property of the Society and its proper management. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as a reasonable restriction under Article 19 (5). Consequently, even on this alternative position taken up by counsel for the respondents, the Act cannot be held to be valid.
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Pooran Singh And Another Vs. State Of Madhya Pradesh | appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act. The High Court was of the view that subs. (1) of S. 130 left an option to the Magistrate exercisable on a consideration of the material placed before him when taking cognizance of an offence to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons. According to the High Court, therefore, the Magistrate had the option to issue a summons with an endorsement in terms of subs.(1) (a) or of sub-s. (1) (b) and only if a summons was issued with the endorsement specified by sub-s. (1) (b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub-s. (3). 5. In our judgment of the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (1) of S. 130. But there is nothing in that sub-section which indicates that he must endorse the summons in terms of both the cls. (a) and (b) : to hold that he is so commanded would be to convert the conjunction "or" into "and". There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act. 6. The procedure in sub-s. (1) of S. 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act. The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 or less. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the Section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25. If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under subs.(1)(b) escape by paying an amount which cannot exceed Rs. 25. Again the Magistrate is authorised under S. 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender of for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub-s. (3) of S. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence. 7. It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used S. 130 (1) does not apply : see Sch. Five, Part A, Item 9. But there are offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which are punishable with imprisonment, e.g., S. 113 (2). There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment, e.g., certain offences under S. 118A and under S. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committed, offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct. 8. Having regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offence not specified in Part A of the Fifth Schedule to make an endorsement in terms of Cl. (b) of sub-s. (1) of S. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh, 1962 (1) Cri LJ 684 (All), and the High Court of Assam in State of Assam v. Suleman Khan, 1961 (2) Cri LJ 869 (Assam), on which the Sessions Judge relied is not correct. | 0[ds]5. In our judgment of the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (1) of S. 130. But there is nothing in that sub-section which indicates that he must endorse the summons in terms of both the cls. (a) and (b) : to hold that he is so commanded would be to convert the conjunction "or" into "and". There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act6. The procedure in sub-s. (1) of S. 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act. The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 or less. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the Section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25. If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under subs.(1)(b) escape by paying an amount which cannot exceed Rs. 25. Again the Magistrate is authorised under S. 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender of for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub-s. (3) of S. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence7. It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used S. 130 (1) does not apply : see Sch. Five, Part A, Item 9. But there are offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which are punishable with imprisonment, e.g., S. 113 (2). There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment, e.g., certain offences under S. 118A and under S. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committed, offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct8. Having regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offence not specified in Part A of the Fifth Schedule to make an endorsement in terms of Cl. (b) of sub-s. (1) of S. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh, 1962 (1) Cri LJ 684 (All), and the High Court of Assam in State of Assam v. Suleman Khan, 1961 (2) Cri LJ 869 (Assam), on which the Sessions Judge relied is not correct. | 0 | 1,854 | 915 | ### Instruction:
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appear by pleader or to plead guilty to the charge by registered letter and remitting therewith the sum specified in the summons, and if the Magistrate failed to give that option, the proceedings initiated would be liable to be set aside as infringing the mandatory provision of the Act. The High Court was of the view that subs. (1) of S. 130 left an option to the Magistrate exercisable on a consideration of the material placed before him when taking cognizance of an offence to issue a summons without requiring the accused to appear by pleader to call upon him to plead guilty to the charge by registered letter and to remit the fine specified in the summons. According to the High Court, therefore, the Magistrate had the option to issue a summons with an endorsement in terms of subs.(1) (a) or of sub-s. (1) (b) and only if a summons was issued with the endorsement specified by sub-s. (1) (b) it was open to the accused to avail himself of the option to plead guilty and to claim the privilege mentioned in sub-s. (3). 5. In our judgment of the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (1) of S. 130. But there is nothing in that sub-section which indicates that he must endorse the summons in terms of both the cls. (a) and (b) : to hold that he is so commanded would be to convert the conjunction "or" into "and". There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act. 6. The procedure in sub-s. (1) of S. 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act. The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 or less. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the Section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25. If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under subs.(1)(b) escape by paying an amount which cannot exceed Rs. 25. Again the Magistrate is authorised under S. 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender of for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub-s. (3) of S. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence. 7. It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used S. 130 (1) does not apply : see Sch. Five, Part A, Item 9. But there are offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which are punishable with imprisonment, e.g., S. 113 (2). There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment, e.g., certain offences under S. 118A and under S. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committed, offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct. 8. Having regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offence not specified in Part A of the Fifth Schedule to make an endorsement in terms of Cl. (b) of sub-s. (1) of S. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh, 1962 (1) Cri LJ 684 (All), and the High Court of Assam in State of Assam v. Suleman Khan, 1961 (2) Cri LJ 869 (Assam), on which the Sessions Judge relied is not correct.
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5. In our judgment of the High Court was right in the view it has taken. The Magistrate taking cognizance of an offence is bound to issue summons of the nature prescribed by sub-s. (1) of S. 130. But there is nothing in that sub-section which indicates that he must endorse the summons in terms of both the cls. (a) and (b) : to hold that he is so commanded would be to convert the conjunction "or" into "and". There is nothing in the words used by the Legislature which justifies such a conversion, and there are strong reasons which render such an interpretation wholly inconsistent with the scheme of the Act6. The procedure in sub-s. (1) of S. 130 applies to cases in which the offence charged is not one of the offences specified in Part A of the Fifth Schedule, but applies to the other offences under the Act. The maximum penalty which is liable to be imposed in respect of these offences defined by the Act is in no case Rs. 25 or less. It could not have been the intention of the Legislature that the offender, even if the case was serious enough to warrant the imposition of the maximum penalty which is permissible under the Section to which the provision is applicable, to avoid imposition of a higher penalty than Rs. 25 by merely pleading guilty. Section 130, it appears, was enacted with a view to protect from harassment a person guilty of a minor infraction of the Motor Vehicles Act or the Rules framed thereunder by dispensing with his presence before the Magistrate and in appropriate cases giving him an option to plead guilty to the charge and to remit the amount which can in no case exceed Rs. 25. If the view which prevailed with the Sessions Judge were true, a person guilty of a serious offence meriting the maximum punishment prescribed for the offence may by pleading guilty under subs.(1)(b) escape by paying an amount which cannot exceed Rs. 25. Again the Magistrate is authorised under S. 17 of the Act in convicting an offender of an offence under the Act, or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment to pass an order declaring the offender unfit for holding a driving licence generally, or for holding a driving licence for a particular class or description of vehicle. Such an order may be passed if it appears to the Court, having regard to the gravity of the offence, inaptitude shown by the offender of for other reasons, that he is unfit to obtain or hold a driving licence. But if the offender avails himself of the option given to him by the Magistrate of pleading guilty, no further proceeding in respect of the offence can in view of sub-s. (3) of S. 130 be taken against him, and he will not be liable to be disqualified for holding or obtaining a licence, though he may otherwise eminently deserve to be disqualified for holding a licence7. It is true that to an offence punishable with imprisonment in the commission of which a motor vehicle was used S. 130 (1) does not apply : see Sch. Five, Part A, Item 9. But there are offences under the Motor Vehicles Act which do not fall within that description and also do not fall under other items, which are punishable with imprisonment, e.g., S. 113 (2). There are also certain offences which, if repeated but not otherwise, are liable to be punished with imprisonment, e.g., certain offences under S. 118A and under S. 123 of the Act. It would be difficult to hold that the Legislature could have intended that irrespective of the seriousness or gravity of the offence committed, offender would be entitled to compound the offence by paying the amount specified in the summons, which the Magistrate would be bound to accept, if the contention raised by the appellants is correct8. Having regard to the phraseology used by the Legislature which prima facie gives a discretion to the Magistrate exercisable at the time of issuing the summons, and having regard also to the scheme of the Act, we are of the view that the High Court was right in holding that the Magistrate is not obliged in offence not specified in Part A of the Fifth Schedule to make an endorsement in terms of Cl. (b) of sub-s. (1) of S. 130 of the Act. We are of the opinion that the view to the contrary expressed by the High Court of Allahabad in State of U.P. v. Mangal Singh, 1962 (1) Cri LJ 684 (All), and the High Court of Assam in State of Assam v. Suleman Khan, 1961 (2) Cri LJ 869 (Assam), on which the Sessions Judge relied is not correct.
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State of Uttar Pradesh Vs. Jayanand Lakhera | however that the liability of Jayanand Lakhera was restricted to Rs. 10, 000/-. He accordingly issued an injunction restraining the State of U.P. from recovering an amount exceeding Rs. 10, 000/- from Jayanand Lakhera. In appeal the High Court of Allahabad decreed the suit and restrained the state from recovering any amount from Jayanand Lakhera. The present appeal has been preferred by the state with special leave.3. It is necessary to consider whether the amount embezzled by Tungeshwar Prasad was Government money. Both the courts have held that it was Government money and on the view we take, even if the amount embezzled was Government money, the respondent. Jayanand is not liable to be proceeded against for recovery of the amount of Rs. 10, 000/- which the State now seeks to recover.4. The plaintiff - Jayanand Lakhera in his plaint expressly averred that his security bond was not accepted. In the written statement it was stated that the allegation of the plaintiff that he stood the security for Rs. 10, 000/- only is wrong. It is further stated that the financial status of the plaintiff was fully enquired into and the bond was accepted. An issue was raised on the plea raised by Jayanand Lakhera, Issue No. 1, read :"Whether the security bond, dated June 10, 1944, was accepted by the defendant ?"Jayanand examined one Jit Singh Bhatia who deposed that since 1944, he was Reader of S.D.M., Pratapnagar, and that he had to deal with the security bond Ex. A-1 produced in the case. He identified the attestation of Sheo Prasad, and deposed that the Ruler of the State used to accept the security bond at the recommendation of the Chief Secretary. There is no cross-examination on this part of the case nor was any evidence led by the State of U.P. to prove that the practice deposed to by the witness was not the true practice. Witness Sarat Chand who was the only witness examined on behalf of the State says nothing in that behalf. There was therefore an averment in the plaint that there was no acceptance of the security bond and a denial of that averment by the state. There was evidence by the plaintiff Jayanand that it was practice in the State that Ruler of the State on the recommendation of the Chief Secretary accepted on the bond. There was no evidence to the contrary on behalf of the State of U.P.5. On the record there is no evidence of any express acceptance of the bond by the Durbar. But Dr. Singhvi for the State contends that Tungeshwar Prasad was appointed by order, dated September 15, 1944, and that the appointment amounts to acceptance by the Ruler of Tehri Garhwal of the bond submitted by Jayanand Lakhera. It is recited in the bond that Tungeshwar Prasad was posted at Tehri Garhwal by the Ruler, but there is no clear evidence as to whether the appointment was made on June 10, 1944, or after that date. On the bond submitted by Jayanand, there are several endorsements, the first being that it was forwarded to the A/C Sahib for information and necessary action. It is then endorsed that the bond sent to the S.D.O., Mohal Kirtinagar, requesting him to make full enquiry about the actual status of the surety and to intimate the same. Then there is the endorsement, presumably of the S.D.O., Mohai Kirtinagar that "the Patwari of Barjula is ordered to write as to what area of land of what particular sort and of what valuation" Jayanand Lakhera possesses and "what other properties he possesses". There is then an endorsement of the S.D.O. that the bond be sent to the Chief Accountant and that a report has been prepared by the Patwari of Jakhand to the effect that the status of the surety is good. Relying upon the Section 8 of the Indian Contract Act, Dr. Singhvi contends that Jayanand Lakhera offered to stand surety for making good any amount embezzled by Tungeshwar Prasad if he was appointed Tahwildar and since Tungeshwar Prasad was in fact appointed, there was a completed contract and the appointment of Tungeshwar Prasad must be regarded a acceptance. But the state has to overcome several difficulties before this argument may be accepted. There is nothing on the record that to prove that the Indian Contract Act or a statute analogous thereof was in force at the relevant time in the Tehri Garhwal State. Again, it cannot be stated with certainty that Tungeshwar Prasad had not been appointed prior to June 10, 1944. The evidence led on behalf of Jayanand Lakhera that the Durbar used to accept the surety bond was not challenged in cross-examination, and was not controverted by any evidence on behalf of the State. No rules relating to the appointment of Tahsildars and submission of the surety bonds, and delegating the authority of the Durbar or the Ruler have been produced. The record is completely silent on these points. Since there is nothing to prove that the Indian Contract Act applied to this area, we must proceed on the broad ground of equity. Here is a case in which the respondent Jayanand had submitted a bond for the acceptance of the State under which he offered render himself liable for any amount that Tungeshwar Prasad may embezzle, such amount being Government money. Enquiry was made in the financial status of Jayanand Lakhera and it was found that he was good for the amount of Rs. 10, 000/- for which it appears the bond had been taken. But thereafter there is no evidence of any acceptance of the bond by the Durbar which on the evidence led by the plaintiff Jayanand Lakhera was the only authority competent to accept the bond. The High Court was in our judgment therefore right in holding that in the absence of evidence of acceptance of the bond, Jayanand Lakhera was not liable to be proceeded against for recovery of the amount of Rs.10,000/-.6. | 0[ds]The language used in the bond is somewhat obscure. It does not set out the authority in whose favour it was executed, but the clearest implication was that it was in favour of the Durbar of Tehri Garhwal State. It is not clear whether Tungeshwar Prasad was appointed Tahwildar before June 10, 1944, or that after that date, though it may be stated that at foot of the bond or in the correspondence accompanying it, there is an endorsement, dated September 15, 1944, that "the applicant Tungeshwar Prasad Lakhera may be appointed.On the record there is no evidence of any express acceptance of the bond by the Durbar.But Dr. Singhvi for the State contends that Tungeshwar Prasad was appointed by order, dated September 15, 1944, and that the appointment amounts to acceptance by the Ruler of Tehri Garhwal of the bond submitted by Jayanand Lakhera.It is recited in the bond that Tungeshwar Prasad was posted at Tehri Garhwal by the Ruler, but there is no clear evidence as to whether the appointment was made on June 10, 1944, or after that date. On the bond submitted by Jayanand, there are several endorsements, the first being that it was forwarded to the A/C Sahib for information and necessary action. It is then endorsed that the bond sent to the S.D.O., Mohal Kirtinagar, requesting him to make full enquiry about the actual status of the surety and to intimate the same. Then there is the endorsement, presumably of the S.D.O., Mohai Kirtinagar that "the Patwari of Barjula is ordered to write as to what area of land of what particular sort and of what valuation" Jayanand Lakhera possesses and "what other properties he possesses". There is then an endorsement of the S.D.O. that the bond be sent to the Chief Accountant and that a report has been prepared by the Patwari of Jakhand to the effect that the status of the surety is good. Relying upon the Section 8 of the Indian Contract Act, Dr. Singhvi contends that Jayanand Lakhera offered to stand surety for making good any amount embezzled by Tungeshwar Prasad if he was appointed Tahwildar and since Tungeshwar Prasad was in fact appointed, there was a completed contract and the appointment of Tungeshwar Prasad must be regarded a acceptance. But the state has to overcome several difficulties before this argument may be accepted. There is nothing on the record that to prove that the Indian Contract Act or a statute analogous thereof was in force at the relevant time in the Tehri Garhwal State. Again, it cannot be stated with certainty that Tungeshwar Prasad had not been appointed prior to June 10, 1944. The evidence led on behalf of Jayanand Lakhera that the Durbar used to accept the surety bond was not challenged inand was not controverted by any evidence on behalf of the State. No rules relating to the appointment of Tahsildars and submission of the surety bonds, and delegating the authority of the Durbar or the Ruler have been produced. The record is completely silent on these points. Since there is nothing to prove that the Indian Contract Act applied to this area, we must proceed on the broad ground of equity. Here is a case in which the respondent Jayanand had submitted a bond for the acceptance of the State under which he offered render himself liable for any amount that Tungeshwar Prasad may embezzle, such amount being Government money. Enquiry was made in the financial status of Jayanand Lakhera and it was found that he was good for the amount of Rs. 10, 000/for which it appears the bond had been taken. But thereafter there is no evidence of any acceptance of the bond by the Durbar which on the evidence led by the plaintiff Jayanand Lakhera was the only authority competent to accept the bond. The High Court was in our judgment therefore right in holding that in the absence of evidence of acceptance of the bond, Jayanand Lakhera was not liable to be proceeded against for recovery of the amount of Rs. | 0 | 1,571 | 739 | ### Instruction:
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### Input:
however that the liability of Jayanand Lakhera was restricted to Rs. 10, 000/-. He accordingly issued an injunction restraining the State of U.P. from recovering an amount exceeding Rs. 10, 000/- from Jayanand Lakhera. In appeal the High Court of Allahabad decreed the suit and restrained the state from recovering any amount from Jayanand Lakhera. The present appeal has been preferred by the state with special leave.3. It is necessary to consider whether the amount embezzled by Tungeshwar Prasad was Government money. Both the courts have held that it was Government money and on the view we take, even if the amount embezzled was Government money, the respondent. Jayanand is not liable to be proceeded against for recovery of the amount of Rs. 10, 000/- which the State now seeks to recover.4. The plaintiff - Jayanand Lakhera in his plaint expressly averred that his security bond was not accepted. In the written statement it was stated that the allegation of the plaintiff that he stood the security for Rs. 10, 000/- only is wrong. It is further stated that the financial status of the plaintiff was fully enquired into and the bond was accepted. An issue was raised on the plea raised by Jayanand Lakhera, Issue No. 1, read :"Whether the security bond, dated June 10, 1944, was accepted by the defendant ?"Jayanand examined one Jit Singh Bhatia who deposed that since 1944, he was Reader of S.D.M., Pratapnagar, and that he had to deal with the security bond Ex. A-1 produced in the case. He identified the attestation of Sheo Prasad, and deposed that the Ruler of the State used to accept the security bond at the recommendation of the Chief Secretary. There is no cross-examination on this part of the case nor was any evidence led by the State of U.P. to prove that the practice deposed to by the witness was not the true practice. Witness Sarat Chand who was the only witness examined on behalf of the State says nothing in that behalf. There was therefore an averment in the plaint that there was no acceptance of the security bond and a denial of that averment by the state. There was evidence by the plaintiff Jayanand that it was practice in the State that Ruler of the State on the recommendation of the Chief Secretary accepted on the bond. There was no evidence to the contrary on behalf of the State of U.P.5. On the record there is no evidence of any express acceptance of the bond by the Durbar. But Dr. Singhvi for the State contends that Tungeshwar Prasad was appointed by order, dated September 15, 1944, and that the appointment amounts to acceptance by the Ruler of Tehri Garhwal of the bond submitted by Jayanand Lakhera. It is recited in the bond that Tungeshwar Prasad was posted at Tehri Garhwal by the Ruler, but there is no clear evidence as to whether the appointment was made on June 10, 1944, or after that date. On the bond submitted by Jayanand, there are several endorsements, the first being that it was forwarded to the A/C Sahib for information and necessary action. It is then endorsed that the bond sent to the S.D.O., Mohal Kirtinagar, requesting him to make full enquiry about the actual status of the surety and to intimate the same. Then there is the endorsement, presumably of the S.D.O., Mohai Kirtinagar that "the Patwari of Barjula is ordered to write as to what area of land of what particular sort and of what valuation" Jayanand Lakhera possesses and "what other properties he possesses". There is then an endorsement of the S.D.O. that the bond be sent to the Chief Accountant and that a report has been prepared by the Patwari of Jakhand to the effect that the status of the surety is good. Relying upon the Section 8 of the Indian Contract Act, Dr. Singhvi contends that Jayanand Lakhera offered to stand surety for making good any amount embezzled by Tungeshwar Prasad if he was appointed Tahwildar and since Tungeshwar Prasad was in fact appointed, there was a completed contract and the appointment of Tungeshwar Prasad must be regarded a acceptance. But the state has to overcome several difficulties before this argument may be accepted. There is nothing on the record that to prove that the Indian Contract Act or a statute analogous thereof was in force at the relevant time in the Tehri Garhwal State. Again, it cannot be stated with certainty that Tungeshwar Prasad had not been appointed prior to June 10, 1944. The evidence led on behalf of Jayanand Lakhera that the Durbar used to accept the surety bond was not challenged in cross-examination, and was not controverted by any evidence on behalf of the State. No rules relating to the appointment of Tahsildars and submission of the surety bonds, and delegating the authority of the Durbar or the Ruler have been produced. The record is completely silent on these points. Since there is nothing to prove that the Indian Contract Act applied to this area, we must proceed on the broad ground of equity. Here is a case in which the respondent Jayanand had submitted a bond for the acceptance of the State under which he offered render himself liable for any amount that Tungeshwar Prasad may embezzle, such amount being Government money. Enquiry was made in the financial status of Jayanand Lakhera and it was found that he was good for the amount of Rs. 10, 000/- for which it appears the bond had been taken. But thereafter there is no evidence of any acceptance of the bond by the Durbar which on the evidence led by the plaintiff Jayanand Lakhera was the only authority competent to accept the bond. The High Court was in our judgment therefore right in holding that in the absence of evidence of acceptance of the bond, Jayanand Lakhera was not liable to be proceeded against for recovery of the amount of Rs.10,000/-.6.
### Response:
0
### Explanation:
The language used in the bond is somewhat obscure. It does not set out the authority in whose favour it was executed, but the clearest implication was that it was in favour of the Durbar of Tehri Garhwal State. It is not clear whether Tungeshwar Prasad was appointed Tahwildar before June 10, 1944, or that after that date, though it may be stated that at foot of the bond or in the correspondence accompanying it, there is an endorsement, dated September 15, 1944, that "the applicant Tungeshwar Prasad Lakhera may be appointed.On the record there is no evidence of any express acceptance of the bond by the Durbar.But Dr. Singhvi for the State contends that Tungeshwar Prasad was appointed by order, dated September 15, 1944, and that the appointment amounts to acceptance by the Ruler of Tehri Garhwal of the bond submitted by Jayanand Lakhera.It is recited in the bond that Tungeshwar Prasad was posted at Tehri Garhwal by the Ruler, but there is no clear evidence as to whether the appointment was made on June 10, 1944, or after that date. On the bond submitted by Jayanand, there are several endorsements, the first being that it was forwarded to the A/C Sahib for information and necessary action. It is then endorsed that the bond sent to the S.D.O., Mohal Kirtinagar, requesting him to make full enquiry about the actual status of the surety and to intimate the same. Then there is the endorsement, presumably of the S.D.O., Mohai Kirtinagar that "the Patwari of Barjula is ordered to write as to what area of land of what particular sort and of what valuation" Jayanand Lakhera possesses and "what other properties he possesses". There is then an endorsement of the S.D.O. that the bond be sent to the Chief Accountant and that a report has been prepared by the Patwari of Jakhand to the effect that the status of the surety is good. Relying upon the Section 8 of the Indian Contract Act, Dr. Singhvi contends that Jayanand Lakhera offered to stand surety for making good any amount embezzled by Tungeshwar Prasad if he was appointed Tahwildar and since Tungeshwar Prasad was in fact appointed, there was a completed contract and the appointment of Tungeshwar Prasad must be regarded a acceptance. But the state has to overcome several difficulties before this argument may be accepted. There is nothing on the record that to prove that the Indian Contract Act or a statute analogous thereof was in force at the relevant time in the Tehri Garhwal State. Again, it cannot be stated with certainty that Tungeshwar Prasad had not been appointed prior to June 10, 1944. The evidence led on behalf of Jayanand Lakhera that the Durbar used to accept the surety bond was not challenged inand was not controverted by any evidence on behalf of the State. No rules relating to the appointment of Tahsildars and submission of the surety bonds, and delegating the authority of the Durbar or the Ruler have been produced. The record is completely silent on these points. Since there is nothing to prove that the Indian Contract Act applied to this area, we must proceed on the broad ground of equity. Here is a case in which the respondent Jayanand had submitted a bond for the acceptance of the State under which he offered render himself liable for any amount that Tungeshwar Prasad may embezzle, such amount being Government money. Enquiry was made in the financial status of Jayanand Lakhera and it was found that he was good for the amount of Rs. 10, 000/for which it appears the bond had been taken. But thereafter there is no evidence of any acceptance of the bond by the Durbar which on the evidence led by the plaintiff Jayanand Lakhera was the only authority competent to accept the bond. The High Court was in our judgment therefore right in holding that in the absence of evidence of acceptance of the bond, Jayanand Lakhera was not liable to be proceeded against for recovery of the amount of Rs.
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Jang Singh Vs. Brijlal And Ors | payment of the decretal amount in pre-emption cases also held that the finding that the short could not be extended by the Court. He deposit was due to an act of the Court was unsupported by evidence. He accordingly set aside the decision of the learned District Judge and restored that of the Sub-Judge, Sisra.6. The facts of the case almost speak for themselves. A search was made for the application on which the order of the Court directing a deposit of Rs. 4,950 was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Courts direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahlmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: " Actus curiae neminem gravabit.7. In the present case the court could have ordered Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court, on the other hand, made an order and through its Clerk prepared a challan showing the amount which was required to be deposited. Jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on Jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of Jang Singh can be ordered to be dismissed. The learned single Judge of the High Court considered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the office reported that only Rs. 4,950 were due. The learned single Judge exceeded his jurisdiction there. It is quite clear that once the finding of the District Judge is accepted and it proceeds on evidence given by Jang Singh and the Execution Clerk-the only conclusion that can be reached is that Jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub-Judge, Sirsa. The District Judge was, however, in error in holding that the decree was "sufficiently complied with. That decree could only be fully complied with by making the deposit of Re. 1 which the District Judge ought to have ordered.8. In our opinion the decision of the learned single Judge of the High Court must be set aside. The mistake committed by the Court must be set right. The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out, however, that we are not deciding the question whether a Court after passing a decree for pre emption can extend the time originally fixed for deposit of the decretal amount.That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc. | 1[ds]It is, however, quite clear that the challan was prepared under the Courts direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person.7. In the present case the court could have ordered Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court, on the other hand, made an order and through its Clerk prepared a challan showing the amount which was required to be deposited. Jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on Jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of Jang Singh can be ordered to be dismissed. The learned single Judge of the High Court considered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the office reported that only Rs. 4,950 were due. The learned single Judge exceeded his jurisdiction there. It is quite clear that once the finding of the District Judge is accepted and it proceeds on evidence given by Jang Singh and the Execution Clerk-the only conclusion that can be reached is that Jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub-Judge, Sirsa. The District Judge was, however, in error in holding that the decree was "sufficiently complied with. That decree could only be fully complied with by making the deposit of Re. 1 which the District Judge ought to have ordered.8. In our opinion the decision of the learned single Judge of the High Court must be set aside. The mistake committed by the Court must be set right. The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out, however, that we are not deciding the question whether a Court after passing a decree for pre emption can extend the time originally fixed for deposit of the decretal amount.That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc. | 1 | 1,896 | 688 | ### Instruction:
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payment of the decretal amount in pre-emption cases also held that the finding that the short could not be extended by the Court. He deposit was due to an act of the Court was unsupported by evidence. He accordingly set aside the decision of the learned District Judge and restored that of the Sub-Judge, Sisra.6. The facts of the case almost speak for themselves. A search was made for the application on which the order of the Court directing a deposit of Rs. 4,950 was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Courts direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahlmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: " Actus curiae neminem gravabit.7. In the present case the court could have ordered Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court, on the other hand, made an order and through its Clerk prepared a challan showing the amount which was required to be deposited. Jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on Jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of Jang Singh can be ordered to be dismissed. The learned single Judge of the High Court considered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the office reported that only Rs. 4,950 were due. The learned single Judge exceeded his jurisdiction there. It is quite clear that once the finding of the District Judge is accepted and it proceeds on evidence given by Jang Singh and the Execution Clerk-the only conclusion that can be reached is that Jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub-Judge, Sirsa. The District Judge was, however, in error in holding that the decree was "sufficiently complied with. That decree could only be fully complied with by making the deposit of Re. 1 which the District Judge ought to have ordered.8. In our opinion the decision of the learned single Judge of the High Court must be set aside. The mistake committed by the Court must be set right. The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out, however, that we are not deciding the question whether a Court after passing a decree for pre emption can extend the time originally fixed for deposit of the decretal amount.That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc.
### Response:
1
### Explanation:
It is, however, quite clear that the challan was prepared under the Courts direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person.7. In the present case the court could have ordered Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court, on the other hand, made an order and through its Clerk prepared a challan showing the amount which was required to be deposited. Jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on Jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of Jang Singh can be ordered to be dismissed. The learned single Judge of the High Court considered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the office reported that only Rs. 4,950 were due. The learned single Judge exceeded his jurisdiction there. It is quite clear that once the finding of the District Judge is accepted and it proceeds on evidence given by Jang Singh and the Execution Clerk-the only conclusion that can be reached is that Jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub-Judge, Sirsa. The District Judge was, however, in error in holding that the decree was "sufficiently complied with. That decree could only be fully complied with by making the deposit of Re. 1 which the District Judge ought to have ordered.8. In our opinion the decision of the learned single Judge of the High Court must be set aside. The mistake committed by the Court must be set right. The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out, however, that we are not deciding the question whether a Court after passing a decree for pre emption can extend the time originally fixed for deposit of the decretal amount.That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc.
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M/S. BANGALORE CLUB Vs. THE COMMISSIONER OF WEALTH TAX & ANR. | beneficiaries thereof would be a fluctuating body of persons, the beneficiaries must be said to be indeterminate as a result of which Sec. 21(4) of the Act would apply and not Sec. 21(1). This was repelled by this Court stating: This immediately takes us to the question as to which of the two sub-sections, (1) or (4) of Section 21 applies for the purpose of assessing the assessees to wealth tax in respect of the beneficial interest in the remainder qua each set of unit or units allocated to the relatives specified in the Second Schedule. Now it is clear from the language of Section 3 that the charge of wealth tax is in respect of the net wealth on the relevant valuation date, and, therefore, the question in regard to the applicability of sub- section (1) or (4) of Section 21 has to be determined with reference to the relevant valuation date. The Wealth Tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of Section 21. It is no answer to the applicability of sub-section (1) of Section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub- section (1) of Section 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being. Not only does this appear to us to be the correct approach in the application of sub-section (1) of Section 21, but we find that this has also been the general consensus of judicial opinion in this country in various High Courts during the last about thirty years. The first decision in which this view was taken was rendered as far back as 1945 by the Patna High Court in Khan Bahadur M. Habibur Rahman v.CIT [(1945) 13 ITR 189 (Pat)] and since then, this view has been followed by the Calcutta High Court in Suhashini Karuri v. WTO [(1962) 46 ITR 953 (Cal) ] the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust v. CWT [(1967) 66 ITR 653, 657- 8 (Bom)] and CWT v. Trustees of Mrs Hansabai Tribhu wandas Trust [(1967) 69 ITR 527 (Bom)] and the Gujarat High Court in Padmavati Jaykrishna Trust v.CIT [(1966) 61 ITR 66, 73-4 (Guj) ]. The Calcutta High Court pointed out in Suhashini Karuri case: The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined but merely because the number of beneficiaries vary from time to time, one cannot say that it is indeterminate. The same proposition was formulated in slightly different language by the Bombay High Court in Trustees of Putalibai R.F. Mulla Trust case [(1967) 66 ITR 653, 657-8 (Bom) ]: The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation. Therefore, whatever may be the position — as to any future date, so far as the relevant date in each year is concerned, it is upon the terms of the trust deed always possible to determine who are the sharers and what their shares respectively are. The Gujarat High Court also observed in Padmavati Jaykrishna Trust case [(1966) 61 ITR 66, 73-4 (Guj) ] : . . . in order to ascertain whether the shares of beneficiaries and their numbers were determinate or not, the Wealth Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of Section 21 applicable. These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of Section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date. If it is, sub-section (1) of Section 21 would apply: if not, the case will be governed by sub-section (4) of Section 21. 35. It is thus clear that what has to be seen in the facts of the present case is the list of members on the date of liquidation as per Rule 35 cited hereinabove. Given that as on that particular date, there would be a fixed list of members belonging to the various classes mentioned in the rules, it is clear that, applying the ratio of Trustees of H.E.H. Nizams Family (supra), such list of members not being a fluctuating body, but a fixed body as on the date of liquidation would again make the members determinate as a result of which, Sec. 21AA would have no application. | 1[ds]19. It is well-settled that when Parliament used the expression association of persons in Section 21AA of the Wealth Tax Act, it must be presumed to know that this expression had been the subject matter of comment in a cognate allied legislation, namely, the Income Tax Act, as referring to persons banding together for a common purpose, being a business purpose in the context of a taxation statute in order to earn income or profits.24. This being the case, it is clear that in order to be an association of persons attracting Section 21AA of the Wealth Tax Act, it is necessary that persons band together with some business or commercial object in view in order to make income or profits. The presumption gets strengthened by the language of Sec. 21AA (2), which speaks of a business or profession carried on by an association of persons which then gets discontinued or dissolved. The thrust of the provision therefore, is to rope in associations of persons whose common object is a business or professional object, namely, to earn income or profits. Bangalore Club being a social club whose objects have been referred to by the Appellate Tribunal in this case make it clear that persons who are banded together do not band together for any business purpose or commercial purpose in order to make income or profits. In fact, the nature of these kind of clubs has been set out in Cricket Club of India Ltd v. Bombay Labour Union (1969) 1 SCR 600 as follows:What we have to see is the nature of the activity in fact and in substance. Though the Club is incorporated as a Company, it is not like an ordinary Company constituted for the purpose of carrying on business. There are no shareholders. No dividends are ever declared and no distribution of profits takes place. Admission to the Club is by payment of admission fee and not by purchase of shares. Even this admission is subject to balloting. The membership is not transferable like the right of shareholders. There is the provision for expulsion of a Member under certain circumstances which feature never exists in the case of a shareholder holding shares in a Limited Company. The membership is fluid. A person retains rights as long as he continues as a Member and gets nothing at all when he ceases to be a Member, even though he may have paid a large amount as admission fee. He even loses his rights on expulsion. In these circumstances, it is clear that the Club cannot be treated as a separate legal entity of the nature of a Limited Company carrying on business. The Club, in fact, continues to be a Members Club without any shareholders and, consequently, all services provided in the Club for Members have to be treated as activities of a self-serving institution.(at page. 614)This judgment has been referred to with approval recently in State of West Bengal v. Calcutta Club Limited (2019) 13 SCALE 474 at paragraph 28.25. At this stage, it is important to refer to CWT v. Ellis Bridge Gymkhana, (supra). In this case, the Ellis Bridge Gymkhana, like the Bangalore Club, is an unincorporated club. The assessment years involved in this case are from 1970-71 to 1977-78 i.e. prior to Section 21AA coming into force.Despite the fact that Section 21AA did not apply, this Court referred to Section 21AA as follows:15. All these provisions go to show that the Wealth Tax Act has been drafted on the same lines as the Indian Income Tax Act, 1922. There is great similarity of wording between the various provisions of the Wealth Tax Act and corresponding provisions of the Indian Income Tax Act, 1922. But in the case of the charging Section 3 of the Wealth Tax Act, the phraseology of the charging Section 3 of the Indian Income Tax Act, 1922 has not been adopted. Unlike Section 3 of the Income Tax Act, Section 3 of the Wealth Tax Act does not mention a firm or an association of persons or a body of individuals as taxable units of assessment.16. The position has been placed beyond doubt by insertion of Section 21-AA in the Wealth Tax Act itself. This amendment was effected by the Finance Act, 1981 with effect from 1-4-1981. It provides for assessment of association of persons in certain special cases and not otherwise.The Court then went on to hold:17. It will be seen that assessment as an association of persons can be made only when the individual shares of members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown. It is only in such an eventuality that an assessment can be made on an association of persons, otherwise not. Sub-section (2) of Section 21-AA deals with cases of such associations as mentioned in sub-section (1). That means only association of persons in which individual shares of the members were unknown or indeterminate can be subjected to wealth tax. Sub-section (3) also deals with association of persons referred to in sub-section (1). Sub- sections (4) and (5) deal with some consequences which will follow the members of an association of persons spoken of in sub-section (1) in the case of discontinuance or dissolution.xxx xxx xxx19. In our view, Section 21-AA far from helping the case of the Revenue directly goes against its contention. An association of persons cannot be taxed at all under Section 3 of the Act. That is why an amendment was necessary to be made by the Finance Act, 1981 whereby Section 21-AA was inserted to bring to tax net wealth of an association of persons where individual shares of the members of the association were unknown or indeterminate.After referring to the explanatory notes introducing Section 21AA in paragraph 32, the Court then went on to hold:33. It will appear from this notification that the Central Board of Direct Taxes clearly recognised that the charge of wealth tax was on individuals and Hindu Undivided Families and not on any other body of individuals or association of persons. Section 21-AA has been introduced to prevent evasion of tax. In a normal case, in assessment of an individual, his wealth from every source will be added up and computed in accordance with provisions of the Wealth Tax Act to arrive at the net wealth which has to be taxed. So, if an individual has any interest in a firm or any other non-corporate body, then his interest in those bodies or associations will be added up in his wealth. It is only where such addition is not possible because the shares of the individual in a body holding property is unknown or indeterminate, resort will be taken to Section 21-AA and association of individuals will be taxed as association of persons.. A perusal of this judgment would show that Section 21AA has been introduced in order to prevent tax evasion. The reason why it was enacted was not to rope in association of persons per se as one more taxable person to whom the Act would apply. The object was to rope in certain assessees who have resorted to the creation of a large number of association of persons without specifically defining the shares of the members of such associations of persons so as to evade tax. In construing Section 21AA, it is important to have regard to this object.28. The Bangalore Club is an association of persons and not the creation, by a person who is otherwise assessable, of one among a large number of associations of persons without defining the shares of the members so as to escape tax liability. For all these reasons, it is clear that Section 21AA of the Wealth Tax Act does not get attracted to the facts of the present case.29. However, the impugned judgment of the High Court relies solely upon CWT v. Chikmagalur Club (supra). This case dealt with a club that was registered under the provisions of the Karnataka Societies Registration Act, 1960. After referring copiously to the Appellate Authoritys orders on facts in this case, the Court went on to hold:10. … Several High Courts and the Tribunals have taken different view on the question whether a club registered under the provisions of Karnataka Societies Registration Act is exigible to tax under the provisions of the Wealth Tax Act, but in our view, for the present, the issue is now settled by the pronouncement of the Supreme Court in the case of the Commissioner of Wealth Tax v. Ellis Bridge Gymkhana [ 229 ITR 1 .] — wherein it is held that club is not assessable to wealth tax in assessment years 1970- 1971 to 1977-1978 as an Association of Persons and while saying so, the Court has observed that the position has been placed beyond doubt by the insertion of Section 21AA in the Wealth Tax Actr this purpose, paragraph 17 already extracted in the Ellis Bridge Gymkhana case (supra) was referred to by the said judgment. After referring to paragraph 17, the Court then concluded:13. … Now that the scope of Section 21AA of the Act has been explained by the Apex Court in Ellies Bridge Gymkhana Clubs case-229 ITR 1 , we need not dilate much on the scope and interpretation of the said Section. It would be suffice to notice that assessment as an association of persons can be made only, when the individual shares of the members of the association in the income or assets or both of the association on the date of its formation or any time thereafter are indeterminate or unknown can be subjected to wealth tax. In the present case, the assessee is a club registered under the provisions of the Karnataka Societies Registration Act and had declared nil wealth and had claimed that it is not susceptible to the provision of wealth Tax Act, since it is only an association of persons providing recreation facilities to its members. This claim, in our view, is rightly rejected by both the assessing authority as well as by the first appellate authority on the ground that the assessee is an association of persons and the members are the owners of the assets and the individual shares of the members in the owners of the assets and the individual shares of the members in the income or assets or both of the association on the date of formation or any time thereafter or indeterminate or unknown and accordingly, has subjected the assessee to wealth tax.. What will be noticed is that the High Court in Chikmagalur Club (supra) only referred to paragraph 17 and omitted to refer to paras 19, 32 and 33 of the Ellis Bridge Gymkhana judgment (supra) which have been referred to by us hereinabove. If all these paragraphs would have been referred to, what would have been clear is that a social club like the Chikmagalur Club could not possibly be said to be an association of persons regard being had to the object sought to be achieved by enacting Section 21AA, which is a Section enacted in order to prevent tax evasion. As has been pointed out by us hereinabove, the Section was not introduced to add one more category to the category of taxable persons – that could have been done by amending the charging section i.e. Section 3(1) of the Wealth Tax Act. Further, the High Court judgment is completely oblivious of the line of judgments starting with Indira Balakrishnas case (supra) by which association of persons must mean persons who are banded together with a common object – and, in the context of a taxation statute, common object being a business object being to earn income or profits. This judgment does not refer to Indira Balakrishna (supra) and the judgments following it at all. For all these reasons, the judgment in CWT v. Chikmagalur Club (supra) not being correctly decided, is overruled. Equally, the High Court judgment which rests solely upon the decision in Chikmagalur Clubs case (supra) has no legs to stand.The submission that Section 21AA (2) which deals with dissolution of an association of persons and the fact that on dissolution under Rule 35 of the Bangalore Club, members get an equal share would show first, that the Bangalore Club is an association of persons; and second, that the members share in its income and assets are indeterminate or unknown, is an argument which has to be stated to be rejected. First and foremost, sub-section (2) begins with the words any business or profession carried on by an association of persons. No business or profession is carried on by a social members club. Further, the association of persons mentioned in sub-section (1) must be persons who have banded together for a business objective – to earn profits – and if this itself is not the case, then sub-section (2) cannot possibly apply. Insofar as Rule 35 is concerned, again what is clear is that on liquidation, any surplus assets remaining after all debts and liabilities of the club has been discharged, shall be divided equally amongst all categories of members of the club. This would show that at any time thereafter within the meaning of Section 21AA (1), the members shares are determinate in that on liquidation each member of whatsoever category gets an equal share.32. The judgments cited by Shri Nikhil Nayyar in so far as this aspect is concerned, have no direct relevance. The judgment in CWT v. Rama Varma Club 226 ITR 898 and CWT v. George Club 191 ITR 368 are both judgments in which no part of the assets is to be distributed even on liquidation to any of the members of these clubs. Thus, it was held in these cases that the members do not have any share in the income or assets of the club at all. The same cannot be said in the facts of this case inasmuch as under Rule 35 the members of the Bangalore Club are entitled to receive surplus assets in the circumstances stated in Rule 35 - equally on liquidation. However, the result remains the same – viz., that even if it be held that the Bangalore Club is an association of persons, the members shares being determinate do not attract Section 21AA.First and foremost, the definition of person in Section 2(31) of the Income Tax Act would take in both an association of persons and a body of individuals. For the purposes of income tax, the Bangalore Club could perhaps be treated to be a body of individuals which is a wider expression than association of persons in which such body of individuals may have no common object at all but would include a combination of individuals who had nothing more than a unity of interest. This distinction has been made by the Andhra Pradesh High Court in Deccan Wine and General Stores v. CIT 106 ITR 111 at pages 116, 117. Quite apart from this, to be taxed as an association of persons under the Income Tax Act is to be taxed as an association of persons per se. We have already seen that Section 21AA does not enlarge the field of tax payers but only plugs evasion as the association of persons must be formed with members who have indeterminate shares in its income or assets. For all these reasons, we cannot accede to Shri Banerjees argument that being taxed as an association of persons under the Income Tax Act, the Bangalore Club must be regarded to be an association of persons for the purpose of a tax evasion provision in the Wealth Tax Act as opposed to a charging provision in the Income Tax Act.In CWT v. Trustees of H.E.H. Nizams Family 108 ITR 555 (1977), this court had to construe Sec. 21 of the Wealth Tax Act. Sec. 21 (1) & (4) which are relevant for our purpose are set out hereinbelow:21. (1) In the case of assets chargeable to tax under this Act, which are held by a court of wards or an administrator-general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise (including a trustee under a valid deed of wakf), the wealth-tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf or for whose benefit the assets are held, and the provisions of this Act shall apply accordingly.xxx xxx xxx(4) Notwithstanding anything contained in this section, where the shares of the persons on whose behalf or for whose benefit any such assets are held are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official trustee, receiver, manager, or other person aforesaid as if the person on whose behalf or for whose benefit the assets are held were an individual for the purposes of this Act.34. The argument made in this case was that, as the members of the Nizams family trust who are beneficiaries thereof would be a fluctuating body of persons, the beneficiaries must be said to be indeterminate as a result of which Sec. 21(4) of the Act would apply and not Sec. 21(1). This was repelled by this Court stating:This immediately takes us to the question as to which of the two sub-sections, (1) or (4) of Section 21 applies for the purpose of assessing the assessees to wealth tax in respect of the beneficial interest in the remainder qua each set of unit or units allocated to the relatives specified in the Second Schedule. Now it is clear from the language of Section 3 that the charge of wealth tax is in respect of the net wealth on the relevant valuation date, and, therefore, the question in regard to the applicability of sub- section (1) or (4) of Section 21 has to be determined with reference to the relevant valuation date. The Wealth Tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of Section 21. It is no answer to the applicability of sub-section (1) of Section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub- section (1) of Section 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being. Not only does this appear to us to be the correct approach in the application of sub-section (1) of Section 21, but we find that this has also been the general consensus of judicial opinion in this country in various High Courts during the last about thirty years. The first decision in which this view was taken was rendered as far back as 1945 by the Patna High Court in Khan Bahadur M. Habibur Rahman v.CIT [(1945) 13 ITR 189 (Pat)] and since then, this view has been followed by the Calcutta High Court in Suhashini Karuri v. WTO [(1962) 46 ITR 953 (Cal) ] the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust v. CWT [(1967) 66 ITR 653, 657- 8 (Bom)] and CWT v. Trustees of Mrs Hansabai Tribhu wandas Trust [(1967) 69 ITR 527 (Bom)] and the Gujarat High Court in Padmavati Jaykrishna Trust v.CIT [(1966) 61 ITR 66, 73-4 (Guj) ]. The Calcutta High Court pointed out in Suhashini Karuri case:The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined but merely because the number of beneficiaries vary from time to time, one cannot say that it is indeterminate.The same proposition was formulated in slightly different language by the Bombay High Court in Trustees of Putalibai R.F. Mulla Trust case [(1967) 66 ITR 653, 657-8 (Bom) ]:The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation. Therefore, whatever may be the position — as to any future date, so far as the relevant date in each year is concerned, it is upon the terms of the trust deed always possible to determine who are the sharers and what their shares respectively are.The Gujarat High Court also observed in Padmavati Jaykrishna Trust case [(1966) 61 ITR 66, 73-4 (Guj) ] :. . . in order to ascertain whether the shares of beneficiaries and their numbers were determinate or not, the Wealth Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of Section 21 applicable.These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of Section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date. If it is, sub-section (1) of Section 21 would apply: if not, the case will be governed by sub-section (4) of Section 21.35. It is thus clear that what has to be seen in the facts of the present case is the list of members on the date of liquidation as per Rule 35 cited hereinabove. Given that as on that particular date, there would be a fixed list of members belonging to the various classes mentioned in the rules, it is clear that, applying the ratio of Trustees of H.E.H. Nizams Family (supra), such list of members not being a fluctuating body, but a fixed body as on the date of liquidation would again make the members determinate as a result of which, Sec. 21AA would have no application.10. It will be noticed that only three types of persons can be assessed to wealth tax under Section 3 i.e. individuals, Hindu undivided families and companies. It is clear that if Section 3(1) alone were to be looked at, the Bangalore Club neither being an individual, nor a HUF, nor a company cannot possibly be brought into the wealth tax net under this provision.Section 21AA was enacted w.e.f. 1 st April, 198113. It can be seen that for the first time from 1 st April, 1981, an association of persons other than a company or cooperative society has been brought into the tax net so far as wealth tax is concerned with the rider that the individual shares of the members of such association in the income or assets or both on the date of its formation or at any time thereafter must be indeterminate or unknown. It is only then that the section gets attracted. | 1 | 10,371 | 4,501 | ### Instruction:
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beneficiaries thereof would be a fluctuating body of persons, the beneficiaries must be said to be indeterminate as a result of which Sec. 21(4) of the Act would apply and not Sec. 21(1). This was repelled by this Court stating: This immediately takes us to the question as to which of the two sub-sections, (1) or (4) of Section 21 applies for the purpose of assessing the assessees to wealth tax in respect of the beneficial interest in the remainder qua each set of unit or units allocated to the relatives specified in the Second Schedule. Now it is clear from the language of Section 3 that the charge of wealth tax is in respect of the net wealth on the relevant valuation date, and, therefore, the question in regard to the applicability of sub- section (1) or (4) of Section 21 has to be determined with reference to the relevant valuation date. The Wealth Tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of Section 21. It is no answer to the applicability of sub-section (1) of Section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub- section (1) of Section 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being. Not only does this appear to us to be the correct approach in the application of sub-section (1) of Section 21, but we find that this has also been the general consensus of judicial opinion in this country in various High Courts during the last about thirty years. The first decision in which this view was taken was rendered as far back as 1945 by the Patna High Court in Khan Bahadur M. Habibur Rahman v.CIT [(1945) 13 ITR 189 (Pat)] and since then, this view has been followed by the Calcutta High Court in Suhashini Karuri v. WTO [(1962) 46 ITR 953 (Cal) ] the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust v. CWT [(1967) 66 ITR 653, 657- 8 (Bom)] and CWT v. Trustees of Mrs Hansabai Tribhu wandas Trust [(1967) 69 ITR 527 (Bom)] and the Gujarat High Court in Padmavati Jaykrishna Trust v.CIT [(1966) 61 ITR 66, 73-4 (Guj) ]. The Calcutta High Court pointed out in Suhashini Karuri case: The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined but merely because the number of beneficiaries vary from time to time, one cannot say that it is indeterminate. The same proposition was formulated in slightly different language by the Bombay High Court in Trustees of Putalibai R.F. Mulla Trust case [(1967) 66 ITR 653, 657-8 (Bom) ]: The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation. Therefore, whatever may be the position — as to any future date, so far as the relevant date in each year is concerned, it is upon the terms of the trust deed always possible to determine who are the sharers and what their shares respectively are. The Gujarat High Court also observed in Padmavati Jaykrishna Trust case [(1966) 61 ITR 66, 73-4 (Guj) ] : . . . in order to ascertain whether the shares of beneficiaries and their numbers were determinate or not, the Wealth Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of Section 21 applicable. These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of Section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date. If it is, sub-section (1) of Section 21 would apply: if not, the case will be governed by sub-section (4) of Section 21. 35. It is thus clear that what has to be seen in the facts of the present case is the list of members on the date of liquidation as per Rule 35 cited hereinabove. Given that as on that particular date, there would be a fixed list of members belonging to the various classes mentioned in the rules, it is clear that, applying the ratio of Trustees of H.E.H. Nizams Family (supra), such list of members not being a fluctuating body, but a fixed body as on the date of liquidation would again make the members determinate as a result of which, Sec. 21AA would have no application.
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### Explanation:
Tax Officer has to determine who are the beneficiaries in respect of the remainder on the relevant date and whether their shares are indeterminate or unknown. It is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future. So long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of Section 21. It is no answer to the applicability of sub-section (1) of Section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest. The position has to be seen on the relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub- section (1) of Section 21 must apply and it would be a matter of no consequence that the number of beneficiaries may vary in the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being. Not only does this appear to us to be the correct approach in the application of sub-section (1) of Section 21, but we find that this has also been the general consensus of judicial opinion in this country in various High Courts during the last about thirty years. The first decision in which this view was taken was rendered as far back as 1945 by the Patna High Court in Khan Bahadur M. Habibur Rahman v.CIT [(1945) 13 ITR 189 (Pat)] and since then, this view has been followed by the Calcutta High Court in Suhashini Karuri v. WTO [(1962) 46 ITR 953 (Cal) ] the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust v. CWT [(1967) 66 ITR 653, 657- 8 (Bom)] and CWT v. Trustees of Mrs Hansabai Tribhu wandas Trust [(1967) 69 ITR 527 (Bom)] and the Gujarat High Court in Padmavati Jaykrishna Trust v.CIT [(1966) 61 ITR 66, 73-4 (Guj) ]. The Calcutta High Court pointed out in Suhashini Karuri case:The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined but merely because the number of beneficiaries vary from time to time, one cannot say that it is indeterminate.The same proposition was formulated in slightly different language by the Bombay High Court in Trustees of Putalibai R.F. Mulla Trust case [(1967) 66 ITR 653, 657-8 (Bom) ]:The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation. Therefore, whatever may be the position — as to any future date, so far as the relevant date in each year is concerned, it is upon the terms of the trust deed always possible to determine who are the sharers and what their shares respectively are.The Gujarat High Court also observed in Padmavati Jaykrishna Trust case [(1966) 61 ITR 66, 73-4 (Guj) ] :. . . in order to ascertain whether the shares of beneficiaries and their numbers were determinate or not, the Wealth Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of Section 21 applicable.These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of Section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date. If it is, sub-section (1) of Section 21 would apply: if not, the case will be governed by sub-section (4) of Section 21.35. It is thus clear that what has to be seen in the facts of the present case is the list of members on the date of liquidation as per Rule 35 cited hereinabove. Given that as on that particular date, there would be a fixed list of members belonging to the various classes mentioned in the rules, it is clear that, applying the ratio of Trustees of H.E.H. Nizams Family (supra), such list of members not being a fluctuating body, but a fixed body as on the date of liquidation would again make the members determinate as a result of which, Sec. 21AA would have no application.10. It will be noticed that only three types of persons can be assessed to wealth tax under Section 3 i.e. individuals, Hindu undivided families and companies. It is clear that if Section 3(1) alone were to be looked at, the Bangalore Club neither being an individual, nor a HUF, nor a company cannot possibly be brought into the wealth tax net under this provision.Section 21AA was enacted w.e.f. 1 st April, 198113. It can be seen that for the first time from 1 st April, 1981, an association of persons other than a company or cooperative society has been brought into the tax net so far as wealth tax is concerned with the rider that the individual shares of the members of such association in the income or assets or both on the date of its formation or at any time thereafter must be indeterminate or unknown. It is only then that the section gets attracted.
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Pooja Ravinder Devidasani Vs. State Of Maharashtra | to be a Director as per the Annual Report which is not disputed by the Respondent No. 2. A perusal of the Complaint shows that Respondent No. 2 has made the newly appointed Directors-Operations Parag Tejani and Hitesh Haria also as accused stating that all the accused approached him with a request for trade finance facility and accordingly the said facility was granted as per their request. It thus gives an impression that Respondent No. 2 is well aware of the change of Directors in the accused Company. In spite of knowing the developments taken place in the Company that the appellant was no longer a Director of the Company and two new Directors were inducted, the Respondent No. 2 has chosen to array all of them as accused in the Complaints. Moreover, Respondent No. 2 had not disputed this fact emphatically in the proceedings before the High Court. We have gone though the reply affidavit filed by Respondent No. 2 before the High Court of Bombay. 25. A bare reading of the averment of Respondent No. 2 before the High Court, suggests that his case appears to be that the appellant has not proved her resignation in unequivocal terms and it is a disputed question of fact. It is noteworthy that the respondent No. 2 except making a bald statement and throwing the burden on the appellant to prove authenticity of documents, has not pleaded anywhere that the public documents Form 32 and Annual Return are forged and fabricated documents. Curiously, respondent No. 2 on the one hand raises a doubt about the genuineness of Form 32, a public document, through which the default Company had communicated the change of Directors to the Registrar of the Companies with the effect of resignation of the appellant and induction of two Directors-Operations and on the other hand, he has arrayed the two newly appointed Directors-Operations as accused whose names were communicated to the Registrar of Companies by the very same Form 32. The respondent/complainant cannot be permitted to blow hot and cold at the same time. When he denies the genuineness of the document, he cannot act upon it and array the newly appointed Directors as accused. 26. We have also perused the copy of Annual Return filed by M/S Elite International Pvt. Ltd. for the year 2006, on 31st March, 2006 furnished in Form 20B as per Section 159 of the Companies Act, 1956. Column IV of Schedule V - Part II of the Annual Return, requires information regarding Directors/Manager/Secretary (Past and Present) in which against the name of Devidasani Ravinder Pooja-appellant it was mentioned Date of ceasing : 17-12-2005. Admittedly, a certified copy of the Annual Return became part of record. Hence, we are of the considered opinion that the factum of appellant resigning from the Board of Directors is established. 27. Unfortunately, the High Court did not deal the issue in a proper perspective and committed error in dismissing the writ petitions by holding that in the Complaints filed by the Respondent No. 2, specific averments were made against the appellant. But on the contrary, taking the complaint as a whole, it can be inferred that in the entire complaint, no specific role is attributed to the appellant in the commission of offence. It is settled law that to attract a case under Section 141 of the N.I. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. But in this case, the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that there is any act committed by the appellant from which a reasonable inference can be drawn that the appellant could be vicariously held liable for the offence with which she is charged. 28. In the entire complaint, neither the role of the appellant in the affairs of the Company was explained nor in what manner the appellant is responsible for the conduct of business of the Company, was explained. From the record it appears that the trade finance facility was extended by the Respondent No. 2 to the default Company during the period from 13th April, 2008 to 14th October, 2008, against which the Cheques were issued by the Company which stood dishonored. Much before that on 17th December, 2005 the appellant resigned from the Board of Directors. Hence, we have no hesitation to hold that continuation of the criminal proceedings against the appellant under Section 138 read with Section 141 of the N.I. Act is a pure abuse of process of law and it has to be interdicted at the threshold. 29. So far as the Letter of Guarantee is concerned, it gives way for a civil liability which the respondent No. 2-complainant can always pursue the remedy before the appropriate Court. So, the contention that the cheques in question were issued by virtue of such Letter of Guarantee and hence the appellant is liable under Section 138 read with Section 141 of the N.I. Act, cannot also be accepted in these proceedings. 30. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and Courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements. The Superior Courts should maintain purity in the administration of Justice and should not allow abuse of the process of the Court. The High Court ought to have quashed the complaint against the appellant which is nothing but a pure abuse of process of law. | 1[ds]25. A bare reading of the averment of Respondent No. 2 before the High Court, suggests that his case appears to be that the appellant has not proved her resignation in unequivocal terms and it is a disputed question of fact. It is noteworthy that the respondent No. 2 except making a bald statement and throwing the burden on the appellant to prove authenticity of documents, has not pleaded anywhere that the public documents Form 32 and Annual Return are forged and fabricated documents. Curiously, respondent No. 2 on the one hand raises a doubt about the genuineness of Form 32, a public document, through which the default Company had communicated the change of Directors to the Registrar of the Companies with the effect of resignation of the appellant and induction of two Directors-Operations and on the other hand, he has arrayed the two newly appointed Directors-Operations as accused whose names were communicated to the Registrar of Companies by the very same Form 32. The respondent/complainant cannot be permitted to blow hot and cold at the same time. When he denies the genuineness of the document, he cannot act upon it and array the newly appointed Directors as accused26. We have also perused the copy of Annual Return filed by M/S Elite International Pvt. Ltd. for the year 2006, on 31st March, 2006 furnished in Form 20B as per Section 159 of the Companies Act, 1956. Column IV of Schedule V - Part II of the Annual Return, requires information regarding Directors/Manager/Secretary (Past and Present) in which against the name of Devidasani Ravinder Pooja-appellant it was mentioned. Admittedly, a certified copy of the Annual Return became part of record. Hence, we are of the considered opinion that the factum of appellant resigning from the Board of Directors is established27. Unfortunately, the High Court did not deal the issue in a proper perspective and committed error in dismissing the writ petitions by holding that in the Complaints filed by the Respondent No. 2, specific averments were made against the appellant. But on the contrary, taking the complaint as a whole, it can be inferred that in the entire complaint, no specific role is attributed to the appellant in the commission of offence. It is settled law that to attract a case under Section 141 of the N.I. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. But in this case, the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that there is any act committed by the appellant from which a reasonable inference can be drawn that the appellant could be vicariously held liable for the offence with which she is charged28. In the entire complaint, neither the role of the appellant in the affairs of the Company was explained nor in what manner the appellant is responsible for the conduct of business of the Company, was explained. From the record it appears that the trade finance facility was extended by the Respondent No. 2 to the default Company during the period from 13th April, 2008 to 14th October, 2008, against which the Cheques were issued by the Company which stood dishonored. Much before that on 17th December, 2005 the appellant resigned from the Board of Directors. Hence, we have no hesitation to hold that continuation of the criminal proceedings against the appellant under Section 138 read with Section 141 of the N.I. Act is a pure abuse of process of law and it has to be interdicted at the threshold29. So far as the Letter of Guarantee is concerned, it gives way for a civil liability which the respondent No. 2-complainant can always pursue the remedy before the appropriate Court. So, the contention that the cheques in question were issued by virtue of such Letter of Guarantee and hence the appellant is liable under Section 138 read with Section 141 of the N.I. Act, cannot also be accepted in these proceedings | 1 | 5,806 | 767 | ### 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:
to be a Director as per the Annual Report which is not disputed by the Respondent No. 2. A perusal of the Complaint shows that Respondent No. 2 has made the newly appointed Directors-Operations Parag Tejani and Hitesh Haria also as accused stating that all the accused approached him with a request for trade finance facility and accordingly the said facility was granted as per their request. It thus gives an impression that Respondent No. 2 is well aware of the change of Directors in the accused Company. In spite of knowing the developments taken place in the Company that the appellant was no longer a Director of the Company and two new Directors were inducted, the Respondent No. 2 has chosen to array all of them as accused in the Complaints. Moreover, Respondent No. 2 had not disputed this fact emphatically in the proceedings before the High Court. We have gone though the reply affidavit filed by Respondent No. 2 before the High Court of Bombay. 25. A bare reading of the averment of Respondent No. 2 before the High Court, suggests that his case appears to be that the appellant has not proved her resignation in unequivocal terms and it is a disputed question of fact. It is noteworthy that the respondent No. 2 except making a bald statement and throwing the burden on the appellant to prove authenticity of documents, has not pleaded anywhere that the public documents Form 32 and Annual Return are forged and fabricated documents. Curiously, respondent No. 2 on the one hand raises a doubt about the genuineness of Form 32, a public document, through which the default Company had communicated the change of Directors to the Registrar of the Companies with the effect of resignation of the appellant and induction of two Directors-Operations and on the other hand, he has arrayed the two newly appointed Directors-Operations as accused whose names were communicated to the Registrar of Companies by the very same Form 32. The respondent/complainant cannot be permitted to blow hot and cold at the same time. When he denies the genuineness of the document, he cannot act upon it and array the newly appointed Directors as accused. 26. We have also perused the copy of Annual Return filed by M/S Elite International Pvt. Ltd. for the year 2006, on 31st March, 2006 furnished in Form 20B as per Section 159 of the Companies Act, 1956. Column IV of Schedule V - Part II of the Annual Return, requires information regarding Directors/Manager/Secretary (Past and Present) in which against the name of Devidasani Ravinder Pooja-appellant it was mentioned Date of ceasing : 17-12-2005. Admittedly, a certified copy of the Annual Return became part of record. Hence, we are of the considered opinion that the factum of appellant resigning from the Board of Directors is established. 27. Unfortunately, the High Court did not deal the issue in a proper perspective and committed error in dismissing the writ petitions by holding that in the Complaints filed by the Respondent No. 2, specific averments were made against the appellant. But on the contrary, taking the complaint as a whole, it can be inferred that in the entire complaint, no specific role is attributed to the appellant in the commission of offence. It is settled law that to attract a case under Section 141 of the N.I. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. But in this case, the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that there is any act committed by the appellant from which a reasonable inference can be drawn that the appellant could be vicariously held liable for the offence with which she is charged. 28. In the entire complaint, neither the role of the appellant in the affairs of the Company was explained nor in what manner the appellant is responsible for the conduct of business of the Company, was explained. From the record it appears that the trade finance facility was extended by the Respondent No. 2 to the default Company during the period from 13th April, 2008 to 14th October, 2008, against which the Cheques were issued by the Company which stood dishonored. Much before that on 17th December, 2005 the appellant resigned from the Board of Directors. Hence, we have no hesitation to hold that continuation of the criminal proceedings against the appellant under Section 138 read with Section 141 of the N.I. Act is a pure abuse of process of law and it has to be interdicted at the threshold. 29. So far as the Letter of Guarantee is concerned, it gives way for a civil liability which the respondent No. 2-complainant can always pursue the remedy before the appropriate Court. So, the contention that the cheques in question were issued by virtue of such Letter of Guarantee and hence the appellant is liable under Section 138 read with Section 141 of the N.I. Act, cannot also be accepted in these proceedings. 30. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and Courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements. The Superior Courts should maintain purity in the administration of Justice and should not allow abuse of the process of the Court. The High Court ought to have quashed the complaint against the appellant which is nothing but a pure abuse of process of law.
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### Explanation:
25. A bare reading of the averment of Respondent No. 2 before the High Court, suggests that his case appears to be that the appellant has not proved her resignation in unequivocal terms and it is a disputed question of fact. It is noteworthy that the respondent No. 2 except making a bald statement and throwing the burden on the appellant to prove authenticity of documents, has not pleaded anywhere that the public documents Form 32 and Annual Return are forged and fabricated documents. Curiously, respondent No. 2 on the one hand raises a doubt about the genuineness of Form 32, a public document, through which the default Company had communicated the change of Directors to the Registrar of the Companies with the effect of resignation of the appellant and induction of two Directors-Operations and on the other hand, he has arrayed the two newly appointed Directors-Operations as accused whose names were communicated to the Registrar of Companies by the very same Form 32. The respondent/complainant cannot be permitted to blow hot and cold at the same time. When he denies the genuineness of the document, he cannot act upon it and array the newly appointed Directors as accused26. We have also perused the copy of Annual Return filed by M/S Elite International Pvt. Ltd. for the year 2006, on 31st March, 2006 furnished in Form 20B as per Section 159 of the Companies Act, 1956. Column IV of Schedule V - Part II of the Annual Return, requires information regarding Directors/Manager/Secretary (Past and Present) in which against the name of Devidasani Ravinder Pooja-appellant it was mentioned. Admittedly, a certified copy of the Annual Return became part of record. Hence, we are of the considered opinion that the factum of appellant resigning from the Board of Directors is established27. Unfortunately, the High Court did not deal the issue in a proper perspective and committed error in dismissing the writ petitions by holding that in the Complaints filed by the Respondent No. 2, specific averments were made against the appellant. But on the contrary, taking the complaint as a whole, it can be inferred that in the entire complaint, no specific role is attributed to the appellant in the commission of offence. It is settled law that to attract a case under Section 141 of the N.I. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. But in this case, the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. There is not even a whisper or shred of evidence on record to show that there is any act committed by the appellant from which a reasonable inference can be drawn that the appellant could be vicariously held liable for the offence with which she is charged28. In the entire complaint, neither the role of the appellant in the affairs of the Company was explained nor in what manner the appellant is responsible for the conduct of business of the Company, was explained. From the record it appears that the trade finance facility was extended by the Respondent No. 2 to the default Company during the period from 13th April, 2008 to 14th October, 2008, against which the Cheques were issued by the Company which stood dishonored. Much before that on 17th December, 2005 the appellant resigned from the Board of Directors. Hence, we have no hesitation to hold that continuation of the criminal proceedings against the appellant under Section 138 read with Section 141 of the N.I. Act is a pure abuse of process of law and it has to be interdicted at the threshold29. So far as the Letter of Guarantee is concerned, it gives way for a civil liability which the respondent No. 2-complainant can always pursue the remedy before the appropriate Court. So, the contention that the cheques in question were issued by virtue of such Letter of Guarantee and hence the appellant is liable under Section 138 read with Section 141 of the N.I. Act, cannot also be accepted in these proceedings
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THE COMMISSIONER Vs. MAHINDRA AND MAHINDRA LTD. THROUGH M.D | taxable as a perquisite under Section 28 (iv) of the IT Act or taxable as a remission of liability under Section 41 (1) of the IT Act. 12. The first issue is the applicability of Section 28 (iv) of the IT Act in the present case. Before moving further, we deem it apposite to reproduce the relevant provision herein below:-28. Profits and gains of business or profession.—The following income shall be chargeable to income-tax under the head Profits andgains of business profession,--x x x the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; x x x 13. On a plain reading of Section 28 (iv) of the IT Act, prima facie, it appears that for the applicability of the said provision, the income which can be taxed shall arise from the business or profession. Also, in order to invoke the provision of Section 28 (iv) of the IT Act, the benefit which is received has to be in some other form rather than in the shape of money. In the present case, it is a matter of record that the amount of Rs. 57,74,064/- is having received as cash receipt due to the waiver of loan. Therefore, the very first condition of Section 28 (iv) of the IT Act which says any benefit or perquisite arising from the business shall be in the form of benefit or perquisite other than in the shape of money, is not satisfied in the present case. Hence, in our view, in no circumstances, it can be said that the amount of Rs 57,74,064/- can be taxed under the provisions of Section 28 (iv) of the IT Act. 14. Another important issue which arises is the applicability of the Section 41 (1) of the IT Act. The said provision is re-produced as under:41. Profits chargeable to tax.- (1) Where an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee (hereinafter referred to as the first-mentioned person) and subsequently during any previous year,- a. the first-mentioned person has obtained, whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by such person or the value of benefit accruing to him shall be deemed to be profits and gains of business or profession and accordingly chargeable to income-tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has been made is in existence in that year or not; or x x x 15. On a perusal of the said provision, it is evident that it is a sine qua non that there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any previous year, if the creditor remits or waives any such liability, then the assessee is liable to pay tax under Section 41 of the IT Act. The objective behind this Section is simple. It is made to ensure that the assessee does not get away with a double benefit once by way of deduction and another by not being taxed on the benefit received by him in the later year with reference to deduction allowed earlier in case of remission of such liability. It is undisputed fact that the Respondent had been paying interest at 6 % per annum to the KJC as per the contract but the assessee never claimed deduction for payment of interest under Section 36 (1) (iii) of the IT Act. In the case at hand, learned CIT (A) relied upon Section 41 (1) of the IT Act and held that the Respondent had received amortization benefit. Amortization is an accounting term that refers to the process of allocating the cost of an asset over a period of time, hence, it is nothing else than depreciation. Depreciation is a reduction in the value of an asset over time, in particular, to wear and tear. Therefore, the deduction claimed by the Respondent in previous assessment years was due to the deprecation of the machine and not on the interest paid by it. 16. Moreover, the purchase effected from the Kaiser Jeep Corporation is in respect of plant, machinery and tooling equipments which are capital assets of the Respondent. It is important to note that the said purchase amount had not been debited to the trading account or to the profit or loss account in any of the assessment years. Here, we deem it proper to mention that there is difference between trading liability and other liability. Section 41 (1) of the IT Act particularly deals with the remission of trading liability. Whereas in the instant case, waiver of loan amounts to cessation of liability other than trading liability. Hence, we find no force in the argument of the Revenue that the case of the Respondent would fall under Section 41 (1) of the IT Act. 17. To sum up, we are not inclined to interfere with the judgment and order passed by the High court in view of the following reasons:a. Section 28(iv) of the IT Act does not apply on the present case since the receipts of Rs 57,74,064/- are in the nature of cash or money.b. Section 41(1) of the IT Act does not apply since waiver of loan does not amount to cessation of trading liability. It is a matter of record that the Respondent has not claimed any deduction under Section 36 (1) (iii) of the IT Act qua the payment of interest in any previous year.18. In view of above discussion, we are of the considered view that these appeals are devoid of merits and deserve to be dismissed. | 0[ds]10. The term loan generally refers to borrowing something, especially a sum of cash that is to be paid back along with the interest decided mutually by the parties. In other terms, the debtor is under a liability to pay back the principal amount along with the agreed rate of interest within a stipulated time.11. It is a well-settled principle that creditor or his successor may exercise their Right of Waiver unilaterally to absolve the debtor from his liability to repay. After such exercise, the debtor is deemed to be absolved from the liability of repayment of loan subject to the conditions of waiver. The waiver may be a partly waiver i.e., waiver of part of the principal or interest repayable, or a complete waiver of both the loan as well as interest amounts. Hence, waiver of loan by the creditor results in the debtor having extra cash in his hand. It is receipt in the hands of the debtor/assessee.13. On a plain reading of Section 28 (iv) of the IT Act, prima facie, it appears that for the applicability of the said provision, the income which can be taxed shall arise from the business or profession. Also, in order to invoke the provision of Section 28 (iv) of the IT Act, the benefit which is received has to be in some other form rather than in the shape of money. In the present case, it is a matter of record that the amount of Rs. 57,74,064/- is having received as cash receipt due to the waiver of loan. Therefore, the very first condition of Section 28 (iv) of the IT Act which says any benefit or perquisite arising from the business shall be in the form of benefit or perquisite other than in the shape of money, is not satisfied in the present case. Hence, in our view, in no circumstances, it can be said that the amount of Rs 57,74,064/- can be taxed under the provisions of Section 28 (iv) of the IT Act.Section 41 (1) of the IT Act.The said provision15. On a perusal of the said provision, it is evident that it is a sine qua non that there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any previous year, if the creditor remits or waives any such liability, then the assessee is liable to pay tax under Section 41 of the IT Act. The objective behind this Section is simple. It is made to ensure that the assessee does not get away with a double benefit once by way of deduction and another by not being taxed on the benefit received by him in the later year with reference to deduction allowed earlier in case of remission of such liability. It is undisputed fact that the Respondent had been paying interest at 6 % per annum to the KJC as per the contract but the assessee never claimed deduction for payment of interest under Section 36 (1) (iii) of the IT Act. In the case at hand, learned CIT (A) relied upon Section 41 (1) of the IT Act and held that the Respondent had received amortization benefit. Amortization is an accounting term that refers to the process of allocating the cost of an asset over a period of time, hence, it is nothing else than depreciation. Depreciation is a reduction in the value of an asset over time, in particular, to wear and tear. Therefore, the deduction claimed by the Respondent in previous assessment years was due to the deprecation of the machine and not on the interest paid by it.16. Moreover, the purchase effected from the Kaiser Jeep Corporation is in respect of plant, machinery and tooling equipments which are capital assets of the Respondent. It is important to note that the said purchase amount had not been debited to the trading account or to the profit or loss account in any of the assessment years. Here, we deem it proper to mention that there is difference between trading liability and other liability. Section 41 (1) of the IT Act particularly deals with the remission of trading liability. Whereas in the instant case, waiver of loan amounts to cessation of liability other than trading liability. Hence, we find no force in the argument of the Revenue that the case of the Respondent would fall underSection 41 (1) of the IT Act.17. To sum up, we are not inclined to interfere with the judgment and order passed by the High court in view of the following reasons:a. Section 28(iv) of the IT Act does not apply on the present case since the receipts of Rs 57,74,064/- are in the nature of cash or money.b. Section 41(1) of the IT Act does not apply since waiver of loan does not amount to cessation of trading liability. It is a matter of record that the Respondent has not claimed any deduction under Section 36 (1) (iii) of the IT Act qua the payment of interest in any previous year.18. In view of above discussion, we are of the considered view that these appeals are devoid of merits and deserve to be dismissed. | 0 | 2,634 | 987 | ### 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:
taxable as a perquisite under Section 28 (iv) of the IT Act or taxable as a remission of liability under Section 41 (1) of the IT Act. 12. The first issue is the applicability of Section 28 (iv) of the IT Act in the present case. Before moving further, we deem it apposite to reproduce the relevant provision herein below:-28. Profits and gains of business or profession.—The following income shall be chargeable to income-tax under the head Profits andgains of business profession,--x x x the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; x x x 13. On a plain reading of Section 28 (iv) of the IT Act, prima facie, it appears that for the applicability of the said provision, the income which can be taxed shall arise from the business or profession. Also, in order to invoke the provision of Section 28 (iv) of the IT Act, the benefit which is received has to be in some other form rather than in the shape of money. In the present case, it is a matter of record that the amount of Rs. 57,74,064/- is having received as cash receipt due to the waiver of loan. Therefore, the very first condition of Section 28 (iv) of the IT Act which says any benefit or perquisite arising from the business shall be in the form of benefit or perquisite other than in the shape of money, is not satisfied in the present case. Hence, in our view, in no circumstances, it can be said that the amount of Rs 57,74,064/- can be taxed under the provisions of Section 28 (iv) of the IT Act. 14. Another important issue which arises is the applicability of the Section 41 (1) of the IT Act. The said provision is re-produced as under:41. Profits chargeable to tax.- (1) Where an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee (hereinafter referred to as the first-mentioned person) and subsequently during any previous year,- a. the first-mentioned person has obtained, whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by such person or the value of benefit accruing to him shall be deemed to be profits and gains of business or profession and accordingly chargeable to income-tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has been made is in existence in that year or not; or x x x 15. On a perusal of the said provision, it is evident that it is a sine qua non that there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any previous year, if the creditor remits or waives any such liability, then the assessee is liable to pay tax under Section 41 of the IT Act. The objective behind this Section is simple. It is made to ensure that the assessee does not get away with a double benefit once by way of deduction and another by not being taxed on the benefit received by him in the later year with reference to deduction allowed earlier in case of remission of such liability. It is undisputed fact that the Respondent had been paying interest at 6 % per annum to the KJC as per the contract but the assessee never claimed deduction for payment of interest under Section 36 (1) (iii) of the IT Act. In the case at hand, learned CIT (A) relied upon Section 41 (1) of the IT Act and held that the Respondent had received amortization benefit. Amortization is an accounting term that refers to the process of allocating the cost of an asset over a period of time, hence, it is nothing else than depreciation. Depreciation is a reduction in the value of an asset over time, in particular, to wear and tear. Therefore, the deduction claimed by the Respondent in previous assessment years was due to the deprecation of the machine and not on the interest paid by it. 16. Moreover, the purchase effected from the Kaiser Jeep Corporation is in respect of plant, machinery and tooling equipments which are capital assets of the Respondent. It is important to note that the said purchase amount had not been debited to the trading account or to the profit or loss account in any of the assessment years. Here, we deem it proper to mention that there is difference between trading liability and other liability. Section 41 (1) of the IT Act particularly deals with the remission of trading liability. Whereas in the instant case, waiver of loan amounts to cessation of liability other than trading liability. Hence, we find no force in the argument of the Revenue that the case of the Respondent would fall under Section 41 (1) of the IT Act. 17. To sum up, we are not inclined to interfere with the judgment and order passed by the High court in view of the following reasons:a. Section 28(iv) of the IT Act does not apply on the present case since the receipts of Rs 57,74,064/- are in the nature of cash or money.b. Section 41(1) of the IT Act does not apply since waiver of loan does not amount to cessation of trading liability. It is a matter of record that the Respondent has not claimed any deduction under Section 36 (1) (iii) of the IT Act qua the payment of interest in any previous year.18. In view of above discussion, we are of the considered view that these appeals are devoid of merits and deserve to be dismissed.
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0
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10. The term loan generally refers to borrowing something, especially a sum of cash that is to be paid back along with the interest decided mutually by the parties. In other terms, the debtor is under a liability to pay back the principal amount along with the agreed rate of interest within a stipulated time.11. It is a well-settled principle that creditor or his successor may exercise their Right of Waiver unilaterally to absolve the debtor from his liability to repay. After such exercise, the debtor is deemed to be absolved from the liability of repayment of loan subject to the conditions of waiver. The waiver may be a partly waiver i.e., waiver of part of the principal or interest repayable, or a complete waiver of both the loan as well as interest amounts. Hence, waiver of loan by the creditor results in the debtor having extra cash in his hand. It is receipt in the hands of the debtor/assessee.13. On a plain reading of Section 28 (iv) of the IT Act, prima facie, it appears that for the applicability of the said provision, the income which can be taxed shall arise from the business or profession. Also, in order to invoke the provision of Section 28 (iv) of the IT Act, the benefit which is received has to be in some other form rather than in the shape of money. In the present case, it is a matter of record that the amount of Rs. 57,74,064/- is having received as cash receipt due to the waiver of loan. Therefore, the very first condition of Section 28 (iv) of the IT Act which says any benefit or perquisite arising from the business shall be in the form of benefit or perquisite other than in the shape of money, is not satisfied in the present case. Hence, in our view, in no circumstances, it can be said that the amount of Rs 57,74,064/- can be taxed under the provisions of Section 28 (iv) of the IT Act.Section 41 (1) of the IT Act.The said provision15. On a perusal of the said provision, it is evident that it is a sine qua non that there should be an allowance or deduction claimed by the assessee in any assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee. Then, subsequently, during any previous year, if the creditor remits or waives any such liability, then the assessee is liable to pay tax under Section 41 of the IT Act. The objective behind this Section is simple. It is made to ensure that the assessee does not get away with a double benefit once by way of deduction and another by not being taxed on the benefit received by him in the later year with reference to deduction allowed earlier in case of remission of such liability. It is undisputed fact that the Respondent had been paying interest at 6 % per annum to the KJC as per the contract but the assessee never claimed deduction for payment of interest under Section 36 (1) (iii) of the IT Act. In the case at hand, learned CIT (A) relied upon Section 41 (1) of the IT Act and held that the Respondent had received amortization benefit. Amortization is an accounting term that refers to the process of allocating the cost of an asset over a period of time, hence, it is nothing else than depreciation. Depreciation is a reduction in the value of an asset over time, in particular, to wear and tear. Therefore, the deduction claimed by the Respondent in previous assessment years was due to the deprecation of the machine and not on the interest paid by it.16. Moreover, the purchase effected from the Kaiser Jeep Corporation is in respect of plant, machinery and tooling equipments which are capital assets of the Respondent. It is important to note that the said purchase amount had not been debited to the trading account or to the profit or loss account in any of the assessment years. Here, we deem it proper to mention that there is difference between trading liability and other liability. Section 41 (1) of the IT Act particularly deals with the remission of trading liability. Whereas in the instant case, waiver of loan amounts to cessation of liability other than trading liability. Hence, we find no force in the argument of the Revenue that the case of the Respondent would fall underSection 41 (1) of the IT Act.17. To sum up, we are not inclined to interfere with the judgment and order passed by the High court in view of the following reasons:a. Section 28(iv) of the IT Act does not apply on the present case since the receipts of Rs 57,74,064/- are in the nature of cash or money.b. Section 41(1) of the IT Act does not apply since waiver of loan does not amount to cessation of trading liability. It is a matter of record that the Respondent has not claimed any deduction under Section 36 (1) (iii) of the IT Act qua the payment of interest in any previous year.18. In view of above discussion, we are of the considered view that these appeals are devoid of merits and deserve to be dismissed.
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Praful Sudhakar Parab Vs. State of Maharashtra | conduct of the accused which has come before the Court by evidence, recovery of clothes which was worn by him at the time of occurrence and recovery of keys which were with the deceased when he left the house completes the chain of events and unerringly points out that it was the accused who committed the crime. 16. One of the submissions which has been raised by the learned amicus curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash laying in the office but no evidence was led by the prosecution to prove that how much cash were there in the pay office. Motive for committing a crime is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another v. State Of Punjab, 2001 (7) SCC 690 , has laid down following in paragraph 18: "18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh v. Jeet Singh {1999 (4) SCC 370 :"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." 17. Further in Paramjeet Singh v. State of Uttarakhand, 2010 (10) SCC 439 , this Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. Following was stated in paragraph 54: "So far as the issue of motive is concerned, the case is squarely covered by the judgment of this court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing [supra])" 18. The High Court while considering the motive has made following observations at page 46: "Although prosecution is not very certain about the motive, upon taking into consideration the evidence of PW-4 and PW-6, a faint probability is created, regarding intentions of the accused to lay hands on the cash which could have been in possession of the victim, as against the initial story that the accused was enraged against the victim, because the victim used to tease him on the point of his marriage with a bar girl Helen Fernandes. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution." We fully endorse the above view taken by the High Court and do not find any substance in the above ground.19. The amicus curiae submits that the Patil Sahib was not examined as witness. The prosecution case was that accused told the victim that he has been called by Patil Sahib in the office. When the evidence has come on the record including the evidence of PW-1 Pradeep Mohit, who was the Telephone Operator in the PTS, Marol in the night of 7.12.1996 that there was no message for victim, non production of Patil by prosecution is of no consequence.20. The next submission of amicus curiae is that the PW-8 Kalpana Raut has stated in her statement that on 7.12.1996 victim left the house after 9:00 p.m. after taking dinner but no food was found in the stomach and the medical report bellies that case. The High Court has dealt with the above submissions and made following observations at page 33: "Evidence of Kalpana, duly supported by PW-15 Shantaram is strong enough to draw conclusion that Kalpana was certainly aware of her husband having departed with nephew of PW-15 Shantaram, irrespective of the fact whether she had seen that nephew or not and also irrespective of the fact, whether the victim departed without dinner. The portion from post mortem notes, indicating the victim to be empty stomach, therefore, is not weighty enough to demolish Kalpanas deposition, which claims knowledge of departure of victim with the accused. We are, therefore, inclined to hold tht Kalpanas evidence that the deceased had departed with the accused, is acceptable and the prosecution has established this circumstance with reliable evidence." 21. We endorse the above findings of the High Court. The present is not a case of solitary evidence of last seen together but sufficient evidence was led to complete the chain of events and link the accused to the crime. The High Court after elaborately considering all the evidence on record has rightly dismissed the appeal filed by the accused. | 0[ds]The present is not a case of solitary evidence of last seen together but sufficient evidence was led to complete the chain of events and link the accused to the crime. The High Court after elaborately considering all the evidence on record has rightly dismissed the appeal filed by the accused. | 0 | 5,321 | 57 | ### 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:
conduct of the accused which has come before the Court by evidence, recovery of clothes which was worn by him at the time of occurrence and recovery of keys which were with the deceased when he left the house completes the chain of events and unerringly points out that it was the accused who committed the crime. 16. One of the submissions which has been raised by the learned amicus curiae is that the prosecution failed to prove any motive. It is contended that the evidence which was led including the recovery of bunch of keys from guardroom was with a view to point out that he wanted to commit theft of the cash laying in the office but no evidence was led by the prosecution to prove that how much cash were there in the pay office. Motive for committing a crime is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another v. State Of Punjab, 2001 (7) SCC 690 , has laid down following in paragraph 18: "18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh v. Jeet Singh {1999 (4) SCC 370 :"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." 17. Further in Paramjeet Singh v. State of Uttarakhand, 2010 (10) SCC 439 , this Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. Following was stated in paragraph 54: "So far as the issue of motive is concerned, the case is squarely covered by the judgment of this court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing [supra])" 18. The High Court while considering the motive has made following observations at page 46: "Although prosecution is not very certain about the motive, upon taking into consideration the evidence of PW-4 and PW-6, a faint probability is created, regarding intentions of the accused to lay hands on the cash which could have been in possession of the victim, as against the initial story that the accused was enraged against the victim, because the victim used to tease him on the point of his marriage with a bar girl Helen Fernandes. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution." We fully endorse the above view taken by the High Court and do not find any substance in the above ground.19. The amicus curiae submits that the Patil Sahib was not examined as witness. The prosecution case was that accused told the victim that he has been called by Patil Sahib in the office. When the evidence has come on the record including the evidence of PW-1 Pradeep Mohit, who was the Telephone Operator in the PTS, Marol in the night of 7.12.1996 that there was no message for victim, non production of Patil by prosecution is of no consequence.20. The next submission of amicus curiae is that the PW-8 Kalpana Raut has stated in her statement that on 7.12.1996 victim left the house after 9:00 p.m. after taking dinner but no food was found in the stomach and the medical report bellies that case. The High Court has dealt with the above submissions and made following observations at page 33: "Evidence of Kalpana, duly supported by PW-15 Shantaram is strong enough to draw conclusion that Kalpana was certainly aware of her husband having departed with nephew of PW-15 Shantaram, irrespective of the fact whether she had seen that nephew or not and also irrespective of the fact, whether the victim departed without dinner. The portion from post mortem notes, indicating the victim to be empty stomach, therefore, is not weighty enough to demolish Kalpanas deposition, which claims knowledge of departure of victim with the accused. We are, therefore, inclined to hold tht Kalpanas evidence that the deceased had departed with the accused, is acceptable and the prosecution has established this circumstance with reliable evidence." 21. We endorse the above findings of the High Court. The present is not a case of solitary evidence of last seen together but sufficient evidence was led to complete the chain of events and link the accused to the crime. The High Court after elaborately considering all the evidence on record has rightly dismissed the appeal filed by the accused.
### Response:
0
### Explanation:
The present is not a case of solitary evidence of last seen together but sufficient evidence was led to complete the chain of events and link the accused to the crime. The High Court after elaborately considering all the evidence on record has rightly dismissed the appeal filed by the accused.
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Union Of India Vs. M/S Rajasthan Spinning & Weaving Mills | the court framed the issues before it, in paragraph 2 of the decision, as follows: "2. A Division Bench of this Court has referred the controversy involved in these appeals to a larger Bench doubting the correctness of the view expressed in Dilip N. Shroff vs. Joint Commissioner of Income Tax, Mumbai & Anr. [2007 (8) SCALE 304]. The question which arises for determination in all these appeals is whether Section 11AC of the Central Excise Act, 1944 (in short the `Act) inserted by Finance Act, 1996 with the intention of imposing mandatory penalty on persons who evaded payment of tax should be read to contain mens rea as an essential ingredient and whether there is a scope for levying penalty below the prescribed minimum. Before the Division Bench, stand of the revenue was that said section should be read as penalty for statutory offence and the authority imposing penalty has no discretion in the matter of imposition of penalty and the adjudicating authority in such cases was duty bound to impose penalty equal to the duties so determined. The assessee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the `IT Act) taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the `Rules) and a decision of this Court in Chairman, SEBI vs. Shriram Mutual Fund & Anr.[2006(5) SCC 361] and was of the view that the basic scheme for imposition of penalty under section 271(1)(c) of IT Act, Section 11AC of the Act and Rule 96ZQ(5) of the Rules is common. According to the Division Bench the correct position in law was laid down in Chairman, SEBIs case (supra) and not in Dilip Shroffs case (supra). Therefore, the matter was referred to a larger Bench." After referring to a number of decisions on interpretation and construction of statutory provisions, in paragraphs 26 and 27 of the decision, the court observed and held as follows: "26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given. "27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered.........". 21. From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that section 11AC would apply to every case of non-payment or short payment of duty regardless of the conditions expressly mentioned in the section for its application. 22. There is another very strong reason for holding that Dharamendra Textile could not have interpreted section 11AC in the manner as suggested because in that case that was not even the stand of the revenue. In paragraph 5 of the decision the court noted the submission made on behalf of the revenue as follows: "5. Mr. Chandrashekharan, Additional Solicitor General submitted that in Rules 96ZQ and 96ZO there is no reference to any mens rea as in section 11AC where mens rea is prescribed statutorily. This is clear from the extended period of limitation permissible under Section 11A of the Act. It is in essence submitted that the penalty is for statutory offence. It is pointed out that the proviso to Section 11A deals with the time for initiation of action. Section 11AC is only a mechanism for computation and the quantum of penalty. It is stated that the consequences of fraud etc. relate to the extended period of limitation and the onus is on the revenue to establish that the extended period of limitation is applicable. Once that hurdle is crossed by the revenue, the assessee is exposed to penalty and the quantum of penalty is fixed. It is pointed out that even if in some statues mens rea is specifically provided for, so is the limit or imposition of penalty, that is the maximum fixed or the quantum has to be between two limits fixed. In the cases at hand, there is no variable and, therefore, no discretion. It is pointed out that prior to insertion of Section 11AC, Rule 173Q was in vogue in which no mens rea was provided for. It only stated "which he knows or has reason to believe". The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here." 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of section 11AC would depend upon theexistence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of section 11A. That is what Dharamendra Textile decides.24. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only in so far as section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision. | 1[ds]17. The main body of1 lays down the conditions and circumstances that would attract penalty and the various provisos enumerate the conditions, subject to which and the extent to which the penalty may be reduced.18. One can not fail to notice that both the proviso to sub section 1 of section 11A and section 11AC use the same expressions: "....by reasons of fraud, collusion or any wilfulmisstatement or suppression of facts, or contravention of any of the provisions of this Act orof the rules made thereunder with intent to evade payment of duty,...". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under section 11A (1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under section 11A (2) there is a legally tenable finding to that effect then the provision of section 11AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under section 11A (2) there would be no application of the penalty provision in section 11AC of the Act. On behalf of the assessees it was also submitted that sections 11A and 11AC not only operate in different fields but the two provisions are also separated by time. The penalty provision of section 11AC would come into play only after an order is passed under section 11A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting a means as indicated in section 11AC.19. From the aforesaid discussion it is clear that penalty under section 11AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section.20. At this stage, we need to examine the recent decision of this Court in Dharamendra Textile (supra). In almost every case relating to penalty, the decision is referred to on behalf of the Revenue as if it laid down that in every case ofor short payment of duty the penalty clause would automatically get attracted and the authority had no discretion in the matter. One of us (Aftab Alam,J.) was a party to the decision in Dharamendra Textile and we see no reason to understand or read that decision in that manner.From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that section 11AC would apply to every case ofor short payment of duty regardless of the conditions expressly mentioned in the section for its application.The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of section 11AC would depend upon theexistence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under(2) of section 11A. That is what Dharamendra Textile decides.24. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only in so far as section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision. | 1 | 6,689 | 679 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the court framed the issues before it, in paragraph 2 of the decision, as follows: "2. A Division Bench of this Court has referred the controversy involved in these appeals to a larger Bench doubting the correctness of the view expressed in Dilip N. Shroff vs. Joint Commissioner of Income Tax, Mumbai & Anr. [2007 (8) SCALE 304]. The question which arises for determination in all these appeals is whether Section 11AC of the Central Excise Act, 1944 (in short the `Act) inserted by Finance Act, 1996 with the intention of imposing mandatory penalty on persons who evaded payment of tax should be read to contain mens rea as an essential ingredient and whether there is a scope for levying penalty below the prescribed minimum. Before the Division Bench, stand of the revenue was that said section should be read as penalty for statutory offence and the authority imposing penalty has no discretion in the matter of imposition of penalty and the adjudicating authority in such cases was duty bound to impose penalty equal to the duties so determined. The assessee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the `IT Act) taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the `Rules) and a decision of this Court in Chairman, SEBI vs. Shriram Mutual Fund & Anr.[2006(5) SCC 361] and was of the view that the basic scheme for imposition of penalty under section 271(1)(c) of IT Act, Section 11AC of the Act and Rule 96ZQ(5) of the Rules is common. According to the Division Bench the correct position in law was laid down in Chairman, SEBIs case (supra) and not in Dilip Shroffs case (supra). Therefore, the matter was referred to a larger Bench." After referring to a number of decisions on interpretation and construction of statutory provisions, in paragraphs 26 and 27 of the decision, the court observed and held as follows: "26. In Union Budget of 1996-97, Section 11AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given. "27. Above being the position, the plea that the Rules 96ZQ and 96ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroffs case (supra) was not correctly decided but Chairman, SEBIs case (supra) has analysed the legal position in the correct perspectives. The reference is answered.........". 21. From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that section 11AC would apply to every case of non-payment or short payment of duty regardless of the conditions expressly mentioned in the section for its application. 22. There is another very strong reason for holding that Dharamendra Textile could not have interpreted section 11AC in the manner as suggested because in that case that was not even the stand of the revenue. In paragraph 5 of the decision the court noted the submission made on behalf of the revenue as follows: "5. Mr. Chandrashekharan, Additional Solicitor General submitted that in Rules 96ZQ and 96ZO there is no reference to any mens rea as in section 11AC where mens rea is prescribed statutorily. This is clear from the extended period of limitation permissible under Section 11A of the Act. It is in essence submitted that the penalty is for statutory offence. It is pointed out that the proviso to Section 11A deals with the time for initiation of action. Section 11AC is only a mechanism for computation and the quantum of penalty. It is stated that the consequences of fraud etc. relate to the extended period of limitation and the onus is on the revenue to establish that the extended period of limitation is applicable. Once that hurdle is crossed by the revenue, the assessee is exposed to penalty and the quantum of penalty is fixed. It is pointed out that even if in some statues mens rea is specifically provided for, so is the limit or imposition of penalty, that is the maximum fixed or the quantum has to be between two limits fixed. In the cases at hand, there is no variable and, therefore, no discretion. It is pointed out that prior to insertion of Section 11AC, Rule 173Q was in vogue in which no mens rea was provided for. It only stated "which he knows or has reason to believe". The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here." 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of section 11AC would depend upon theexistence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of section 11A. That is what Dharamendra Textile decides.24. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only in so far as section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision.
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17. The main body of1 lays down the conditions and circumstances that would attract penalty and the various provisos enumerate the conditions, subject to which and the extent to which the penalty may be reduced.18. One can not fail to notice that both the proviso to sub section 1 of section 11A and section 11AC use the same expressions: "....by reasons of fraud, collusion or any wilfulmisstatement or suppression of facts, or contravention of any of the provisions of this Act orof the rules made thereunder with intent to evade payment of duty,...". In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under section 11A (1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under section 11A (2) there is a legally tenable finding to that effect then the provision of section 11AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under section 11A (2) there would be no application of the penalty provision in section 11AC of the Act. On behalf of the assessees it was also submitted that sections 11A and 11AC not only operate in different fields but the two provisions are also separated by time. The penalty provision of section 11AC would come into play only after an order is passed under section 11A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting a means as indicated in section 11AC.19. From the aforesaid discussion it is clear that penalty under section 11AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section.20. At this stage, we need to examine the recent decision of this Court in Dharamendra Textile (supra). In almost every case relating to penalty, the decision is referred to on behalf of the Revenue as if it laid down that in every case ofor short payment of duty the penalty clause would automatically get attracted and the authority had no discretion in the matter. One of us (Aftab Alam,J.) was a party to the decision in Dharamendra Textile and we see no reason to understand or read that decision in that manner.From the above, we fail to see how the decision in Dharamendra Textile can be said to hold that section 11AC would apply to every case ofor short payment of duty regardless of the conditions expressly mentioned in the section for its application.The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of section 11AC would depend upon theexistence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under(2) of section 11A. That is what Dharamendra Textile decides.24. It must, however, be made clear that what is stated above in regard to the decision in Dharamendra Textile is only in so far as section 11AC is concerned. We make no observations (as a matter of fact there is no occasion for it!) with regard to the several other statutory provisions that came up for consideration in that decision.
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Yashpal Sahni Vs. Rekha Hajarnavis, Assistant Commissioner of Income-Tax & Others | under section 205 of the Act comes into operation and it is immaterial as to whether the tax deducted at source has been paid to the Central Government or not, because elaborate provisions are made under the Act for recovery of tax deducted at source from the person who has deducted such tax.21. In the present case, the petitioner - assessee has furnished monthly pay slips and bank statements to show that from his salary tax was deducted at source by the employer - respondent No.6. Authenticity of the said pay slips and bank statements have not been disputed by the revenue. Thus, it is clear that the tax has been deducted at source by the respondent No.6 from the salary paid to the petitioner. Therefore, the only question to be considered is, if the employer-respondent No.6 has failed to deposit the tax deducted at source from the salary income of the petitioner to the credit of the Central Government, whether the revenue can recover the TDS amount with interest once again from the petitioner 22. In the present case, though the respondent No.6 has deducted the tax at source from the salary income of the petitioner, the respondent No.6 has not issued the TDS certificate in Form No.16 to the petitioner. As a result, the petitioner is not entitled to avail credit of the tax deducted at source. However, once it is established that the tax has been deducted at source, the bar under section 205 of the Act comes into operation and the revenue is barred from recovering the TDS amount once again from the employee from whose income, TDS amount has been deducted. It is pertinent to note that the purpose of issuing TDS certificate under section 203 of the Act is to enable the assessee to avail credit of the tax deducted at source in the relevant assessment year. If the TDS certificate is not issued, then under section 199 of the Act, the assessee from whose income, tax has been deducted at source will not be entitled to take credit of the said amount. In that event, on account of the non availability of the credit, the assessee would be liable to pay tax once again even though the tax was deducted at source. Thus, it would be a case of double taxation which is not permissible in law. To avoid such anomaly, section 205 has been enacted, to the effect that, once the tax is deducted at source by the employer-company, then, the person from whose income, the tax has been deducted at source shall not be called to pay the said tax again. From the language of section of 205 of the Act, it is clear that the bar operates as soon as it is established that the tax has been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is paid to the credit of Central Government or not and whether TDS certificate in Form No.16 has been issued or not. Also the mere fact that the employer may not issue TDS certificate to the employee does not mean that the liability of the employer ceases. The liabilty to pay income tax if deducted at source is upon the employer. 23. As held by the Gauhati High Court in the course of Omprakash Gattani (supra), once the mode of collecting tax by deduction at source is adopted, that mode alone is to be adopted for recovery of tax deducted at source. Although it is obligatory on the part of the person collecting tax at source to pay the said TDS amount to the credit of the Central Government within the stipulated time, if such person fails to pay the TDS amount within the stipulated time, then, section 201 of the Act provides that such person shall be deemed to be an assessee in default and the revenue will be entitled to recover the TDS amount with interest at 12% p.a. and till the said TDS amount with interest is recovered there shall be a charge on all the assets of such person or the company. Penalty under section 221 of the Act and rigorous imprisonment under section 276 B of the Act can also be imposed upon such defaulting person or the company. Thus, complete machinery is provided under the Act for recovery of tax deducted at source from the person who has deducted such tax at source and the revenue is barred from recovering the TDS amount from the person from whose income, tax has been deducted at source. Therefore, the fact that the revenue is unable to recover the tax deducted at source from the person who has deducted such tax would not entitle the revenue to recover the said amount once again from the employee-assessee, in view of the specific bar contained in section 205 of the Act.24. As stated earlier, in the present case the petitioner-assessee has established that from his salary income, tax has been deducted at source by the employer-respondent No.6 and, therefore, the revenue has to recover the said TDS amount with interest and penalty from the respondent No.6 alone and the revenue cannot seek to recover the said amount from the petitioner-assessee in view of the specific bar contained under section 205 of the Act. The fact that the petitioner is not entitled to the credit of the tax deducted at source for the non issuance of the TDS certificate by the respondent No.6, cannot be a ground to recover the amount of tax deducted at source from the petitioner. In other words, even if the credit of the TDS amount is not available to the petitioner - assessee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the petitioner would be sufficient to hold that as per section 205 of the Act, the revenue cannot recover the TDS amount with interest from the petitioner once again. | 1[ds]21. In the present case, the petitionerassessee has furnished monthly pay slips and bank statements to show that from his salary tax was deducted at source by the employerrespondent No.6. Authenticity of the said pay slips and bank statements have not been disputed by the revenue. Thus, it is clear that the tax has been deducted at source by the respondent No.6 from the salary paid to the petitioner.In the present case, though the respondent No.6 has deducted the tax at source from the salary income of the petitioner, the respondent No.6 has not issued the TDS certificate in Form No.16 to thethe language of section of 205 of the Act, it is clear that the bar operates as soon as it is established that the tax has been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is paid to the credit of Central Government or not and whether TDS certificate in Form No.16 has been issued or not. Also the mere fact that the employer may not issue TDS certificate to the employee does not mean that the liability of the employer ceases. The liabilty to pay income tax if deducted at source is upon thethe fact that the revenue is unable to recover the tax deducted at source from the person who has deducted such tax would not entitle the revenue to recover the said amount once again from thein view of the specific bar contained in section 205 of the Act.24. As stated earlier, in the present case thehas established that from his salary income, tax has been deducted at source by theNo.6 and, therefore, the revenue has to recover the said TDS amount with interest and penalty from the respondent No.6 alone and the revenue cannot seek to recover the said amount from thein view of the specific bar contained under section 205 of the Act. The fact that the petitioner is not entitled to the credit of the tax deducted at source for the non issuance of the TDS certificate by the respondent No.6, cannot be a ground to recover the amount of tax deducted at source from the petitioner. In other words, even if the credit of the TDS amount is not available to the petitionerassessee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the petitioner would be sufficient to hold that as per section 205 of the Act, the revenue cannot recover the TDS amount with interest from the petitioner once again. | 1 | 3,095 | 457 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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under section 205 of the Act comes into operation and it is immaterial as to whether the tax deducted at source has been paid to the Central Government or not, because elaborate provisions are made under the Act for recovery of tax deducted at source from the person who has deducted such tax.21. In the present case, the petitioner - assessee has furnished monthly pay slips and bank statements to show that from his salary tax was deducted at source by the employer - respondent No.6. Authenticity of the said pay slips and bank statements have not been disputed by the revenue. Thus, it is clear that the tax has been deducted at source by the respondent No.6 from the salary paid to the petitioner. Therefore, the only question to be considered is, if the employer-respondent No.6 has failed to deposit the tax deducted at source from the salary income of the petitioner to the credit of the Central Government, whether the revenue can recover the TDS amount with interest once again from the petitioner 22. In the present case, though the respondent No.6 has deducted the tax at source from the salary income of the petitioner, the respondent No.6 has not issued the TDS certificate in Form No.16 to the petitioner. As a result, the petitioner is not entitled to avail credit of the tax deducted at source. However, once it is established that the tax has been deducted at source, the bar under section 205 of the Act comes into operation and the revenue is barred from recovering the TDS amount once again from the employee from whose income, TDS amount has been deducted. It is pertinent to note that the purpose of issuing TDS certificate under section 203 of the Act is to enable the assessee to avail credit of the tax deducted at source in the relevant assessment year. If the TDS certificate is not issued, then under section 199 of the Act, the assessee from whose income, tax has been deducted at source will not be entitled to take credit of the said amount. In that event, on account of the non availability of the credit, the assessee would be liable to pay tax once again even though the tax was deducted at source. Thus, it would be a case of double taxation which is not permissible in law. To avoid such anomaly, section 205 has been enacted, to the effect that, once the tax is deducted at source by the employer-company, then, the person from whose income, the tax has been deducted at source shall not be called to pay the said tax again. From the language of section of 205 of the Act, it is clear that the bar operates as soon as it is established that the tax has been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is paid to the credit of Central Government or not and whether TDS certificate in Form No.16 has been issued or not. Also the mere fact that the employer may not issue TDS certificate to the employee does not mean that the liability of the employer ceases. The liabilty to pay income tax if deducted at source is upon the employer. 23. As held by the Gauhati High Court in the course of Omprakash Gattani (supra), once the mode of collecting tax by deduction at source is adopted, that mode alone is to be adopted for recovery of tax deducted at source. Although it is obligatory on the part of the person collecting tax at source to pay the said TDS amount to the credit of the Central Government within the stipulated time, if such person fails to pay the TDS amount within the stipulated time, then, section 201 of the Act provides that such person shall be deemed to be an assessee in default and the revenue will be entitled to recover the TDS amount with interest at 12% p.a. and till the said TDS amount with interest is recovered there shall be a charge on all the assets of such person or the company. Penalty under section 221 of the Act and rigorous imprisonment under section 276 B of the Act can also be imposed upon such defaulting person or the company. Thus, complete machinery is provided under the Act for recovery of tax deducted at source from the person who has deducted such tax at source and the revenue is barred from recovering the TDS amount from the person from whose income, tax has been deducted at source. Therefore, the fact that the revenue is unable to recover the tax deducted at source from the person who has deducted such tax would not entitle the revenue to recover the said amount once again from the employee-assessee, in view of the specific bar contained in section 205 of the Act.24. As stated earlier, in the present case the petitioner-assessee has established that from his salary income, tax has been deducted at source by the employer-respondent No.6 and, therefore, the revenue has to recover the said TDS amount with interest and penalty from the respondent No.6 alone and the revenue cannot seek to recover the said amount from the petitioner-assessee in view of the specific bar contained under section 205 of the Act. The fact that the petitioner is not entitled to the credit of the tax deducted at source for the non issuance of the TDS certificate by the respondent No.6, cannot be a ground to recover the amount of tax deducted at source from the petitioner. In other words, even if the credit of the TDS amount is not available to the petitioner - assessee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the petitioner would be sufficient to hold that as per section 205 of the Act, the revenue cannot recover the TDS amount with interest from the petitioner once again.
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### Explanation:
21. In the present case, the petitionerassessee has furnished monthly pay slips and bank statements to show that from his salary tax was deducted at source by the employerrespondent No.6. Authenticity of the said pay slips and bank statements have not been disputed by the revenue. Thus, it is clear that the tax has been deducted at source by the respondent No.6 from the salary paid to the petitioner.In the present case, though the respondent No.6 has deducted the tax at source from the salary income of the petitioner, the respondent No.6 has not issued the TDS certificate in Form No.16 to thethe language of section of 205 of the Act, it is clear that the bar operates as soon as it is established that the tax has been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is paid to the credit of Central Government or not and whether TDS certificate in Form No.16 has been issued or not. Also the mere fact that the employer may not issue TDS certificate to the employee does not mean that the liability of the employer ceases. The liabilty to pay income tax if deducted at source is upon thethe fact that the revenue is unable to recover the tax deducted at source from the person who has deducted such tax would not entitle the revenue to recover the said amount once again from thein view of the specific bar contained in section 205 of the Act.24. As stated earlier, in the present case thehas established that from his salary income, tax has been deducted at source by theNo.6 and, therefore, the revenue has to recover the said TDS amount with interest and penalty from the respondent No.6 alone and the revenue cannot seek to recover the said amount from thein view of the specific bar contained under section 205 of the Act. The fact that the petitioner is not entitled to the credit of the tax deducted at source for the non issuance of the TDS certificate by the respondent No.6, cannot be a ground to recover the amount of tax deducted at source from the petitioner. In other words, even if the credit of the TDS amount is not available to the petitionerassessee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the petitioner would be sufficient to hold that as per section 205 of the Act, the revenue cannot recover the TDS amount with interest from the petitioner once again.
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Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas | same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force." It was furthermore opined:- "26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." This Court opined that the Law of England as enunciated by the House of Lords in Arnold vs. National Westiminster Bank Plc. : (1991) 2 AC 93 = (1991) 3 All ER 41, HL to hold that the said principle will have no application in India stating:- "30. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid down by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code, we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold v. National Westminster Bank Plc.331. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment". 31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:- "29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday) 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord." 32. Yet again in Annaimuthu Thevar (Dead) by Lrs. vs. V. Alagammal and others : (2005) 6 SCC 202 a Division Bench of this Court held :- "27. The next question that arises is whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami." 33. Even in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma vs. Narayanan Nair : 1994 (2) SCC 14 ). 34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only). | 0[ds]19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.23. Similarly the provisions of Order II Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need no go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof.Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only). | 0 | 5,961 | 414 | ### 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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same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force." It was furthermore opined:- "26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." This Court opined that the Law of England as enunciated by the House of Lords in Arnold vs. National Westiminster Bank Plc. : (1991) 2 AC 93 = (1991) 3 All ER 41, HL to hold that the said principle will have no application in India stating:- "30. Mr. Salves assertions based on the aforesaid decision of the House of Lords may be valid to an extent but then in view of the principles of law laid down by this Court on the application of res judicata and estoppel and considering the provisions of Section 11 of the Code, we do not think there is any scope to incorporate the exception to the rule of issue estoppel as given in Arnold v. National Westminster Bank Plc.331. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment". 31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:- "29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday) 30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel by accord." 32. Yet again in Annaimuthu Thevar (Dead) by Lrs. vs. V. Alagammal and others : (2005) 6 SCC 202 a Division Bench of this Court held :- "27. The next question that arises is whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed dated 28-2-1983 from Muthuswami." 33. Even in a case of title, Explanation IV to Section 11 would apply. (See also Sulochana Amma vs. Narayanan Nair : 1994 (2) SCC 14 ). 34. Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only).
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19. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.23. Similarly the provisions of Order II Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need no go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof.Furthermore in terms of Section 5 of the Specific Relief Act, 1963 a suit for possession must be filed having regard to the provisions of the Code of Civil Procedure. If the statute provides for the applicability of the Code of Civil Procedure, there cannot be any doubt whatsoever that all the relevant provisions thereof shall apply. (See Shamsu Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569 ) & Hardesh Ores (P) Ltd. vs. Hede and Company :2007 (5) SCC 614 ).35. We have, therefore, no hesitation to hold that the impugned judgment cannot be sustained. The same is set aside. The appeal is allowed with costs. Counsels fee assessed at Rs.25,000/- (Rupees Twenty Five Thousand only).
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Mohd. Raza & Anr Vs. Geeta @ Geeta Devi | Rule 6 of CPC. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property. In paragraphs 1 to 3, it is stated in the written statement as under:- 1. That the present suit is not maintainable as the answering defendants are not now the tenant of the plaintiff but the actual owner of the suit property. The plaintiff sold the suit property in question to the answering defendants for which some documents were also executed by the plaintiff in favour of the answering defendant no. 2/Seema Begum on 15.01.2017 and 29.01.2017, hence the suit of the plaintiff is liable to be dismissed with heavy cost. 2. That the plaintiff has filed a false and fabricated suit by concealing the material and true facts of the case and the plaintiff wants to harass the answering defendants and to grab the earnest money of the answering defendants by filing the present suit. It is submitted that the suit of the plaintiff is not maintainable in the eye of law because this matter is not the suit for possession, mandatory injunction, permanent injunction and mesne profit between the parties but it is the matter of the ownership, cheating and grabbing the money of Rs. 19 Lakhs of the answering defendant and it is the matter of compliance the agreement between the parties which is executed by the plaintiff on 29.01.2017 hence the suit of the plaintiff is liable to be dismissed with cost. 3. That it is submitted that the suit property is absolutely concerned with the defendants. The defendant no. 2/Seema Begum is absolute owner of the suit property and she has every right or interest in the suit property in question. She has purchased the suit property in question and other part of the suit property (measuring area 30 sq. yards and 50 sq. yards) and the defendants had taken the peaceful possession both part of the suit property from the plaintiff. The defendant no. 2 has also filed a case/suit for specific performance of contract, declaration, eviction and permanent injunction against the plaintiff which is pending for adjudication before the Honble Court of Sh. Sanatan Prasad, Ld. ADJ, East, KKD Courts, Delhi Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner. 9. It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff – respondent herein continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous. However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court. | 0[ds]8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property.Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner.9. It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff – respondent herein continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous.However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court. | 0 | 2,400 | 679 | ### 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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Rule 6 of CPC. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property. In paragraphs 1 to 3, it is stated in the written statement as under:- 1. That the present suit is not maintainable as the answering defendants are not now the tenant of the plaintiff but the actual owner of the suit property. The plaintiff sold the suit property in question to the answering defendants for which some documents were also executed by the plaintiff in favour of the answering defendant no. 2/Seema Begum on 15.01.2017 and 29.01.2017, hence the suit of the plaintiff is liable to be dismissed with heavy cost. 2. That the plaintiff has filed a false and fabricated suit by concealing the material and true facts of the case and the plaintiff wants to harass the answering defendants and to grab the earnest money of the answering defendants by filing the present suit. It is submitted that the suit of the plaintiff is not maintainable in the eye of law because this matter is not the suit for possession, mandatory injunction, permanent injunction and mesne profit between the parties but it is the matter of the ownership, cheating and grabbing the money of Rs. 19 Lakhs of the answering defendant and it is the matter of compliance the agreement between the parties which is executed by the plaintiff on 29.01.2017 hence the suit of the plaintiff is liable to be dismissed with cost. 3. That it is submitted that the suit property is absolutely concerned with the defendants. The defendant no. 2/Seema Begum is absolute owner of the suit property and she has every right or interest in the suit property in question. She has purchased the suit property in question and other part of the suit property (measuring area 30 sq. yards and 50 sq. yards) and the defendants had taken the peaceful possession both part of the suit property from the plaintiff. The defendant no. 2 has also filed a case/suit for specific performance of contract, declaration, eviction and permanent injunction against the plaintiff which is pending for adjudication before the Honble Court of Sh. Sanatan Prasad, Ld. ADJ, East, KKD Courts, Delhi Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner. 9. It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff – respondent herein continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous. However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.
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8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property.Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner.9. It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff – respondent herein continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous.However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.
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Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib And Ors | or their proceds. The son alleged in the plaint that at the time of the occurrence the mother was suffering from dementia and was not in a fit state of mind to execute contracts or to manage her affairs and was until July 1893 (she having died in the year1900) residing with the daughter and was completely under her domination and control. Before the learned Trial Judge a large mass of evidence was given directed to the question of Khaja Boos mental capacity in 1889. The learned Judge found that the plaintiff had failed to show that his mother was of unsound mind in 1889. The Court of Appeal came to the same conclusion. The learned Trial Judge, however, came to the conclusion that Khaja Boo at the period in question was entirely under the control and domination of her daughter and that the latter had unscrupulously used her power over her mother in order to get her mothers property into her own hands and that the whole proceedings ought to be avoided on the ground of undue influence. This finding was, however, reversed in appeal.20. The Judicial Committee took the view that the question of undue influence was never properly before the court at all. No such case was set up in the pleadings. The nearest approach to it was in the passage of the plaint already cited in which it was said that Khaja Boo was entirely under the domination and control of her daughter; but that is only said incidentally in connection with the allegation of mental incapacity which allegation formed the real case of the plaintiff. And accordingly when the issues were settled there was a clear issue as to Khaja Boo being of unsound mind in 1889 but none with regard to undue influence.21. The Board therefore concluded that the question of undue influence was discussed and considered not upon evidence given with reference to that question, but upon evidence called for a totally different purpose.22. It will be noted that in this case no issue was raised of Prasanna having been of unsound mind at the date of the deed of gift and, as already noted, no issue was raised on undue influence at all. It is true that some evidence was adduced on the point as to whether Prasanna was of sound mind in the year 1944, but that was wholly negatived by the learned Subordinate Judge and his finding was not upset in appeal except by way of presumption which does not arise in law.23. It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94 :-"The mere relations of daughter to mother, of course. in itself suggests nothing in the way of special influence or control. The evidence seems to their Lordships quite insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead to a presumption against any transaction between the two. With regard to the actual transactions in question there is no evidence whatever of undue influence brought to bear upon them."24. The same remarks may justly be made of the pleadings and the evidence adduced in this case.25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock ones conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstance that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father.26. Once we come to the conclusion that the presumptions made by the learned Judges of the High Court were not warranted by law and that they did not take a view of the evidence adduced at the trial different from that of the Subordinate Judge on the facts of this case we must hold that the whole approach of the learned Judges of the High Court was wrong and as such their decision cannot be upheld.27. The learned Additional Solicitor General also wanted to argue that the suit was defective, because the plaintiff was out of possession and had not asked for a decree for possession in his plaint as he was bound to do if he was asking for a declaration of title to the property. It is to be noted that we did not think it necessary to go into this question and did not allow him to place the evidence on this point before us as we were of the view that the case of undue influence had not been sufficiently alleged either on the pleadings or substantiated on the evidence adduced. | 1[ds]16. At the trial several witnesses were examined by the plaintiff for the purpose of showing that Prasanna was a person of unsound mind at the time when he executed the deed of gift. We have been taken through the evidence on this point and we fully agree with the judgment of the learned Subordinate Judge who was "enable to hold that Prasanna was a man of unsound mind when he executed Ex. G or that he was not aware of the fact of transfer". The plaintiffs only statement in examination in chief was that his father was not of sound mind for 10 or 12 years from before his death. Is it to be believed that he did not know about the Nirupan Patra until four years after the death of his father? This statement of his can hardly be true because the Nirupan Patra does not stand by itself but was given effect to in several deeds of settlement which came out in evidence at the trial. There was evidence before the Subordinate Judge to show that Prasanna had filed a written statement in money suit No. 217 of 1948 filed by the Municipal Commissioners of Bankura, that he was not in possession of the holding. The learned Subordinate Judge, in our opinion, rightly came to the conclusion that the document of settlement executed after the deed of gift and Prasannas written statement in the suit by the Municipal Commissioners showed that Prasanna was fully aware of the fact that he had transferred the property to defendant No. 1.The Judicial Committee took the view that the question of undue influence was never properly before the court at all. No such case was set up in the pleadings. The nearest approach to it was in the passage of the plaint already cited in which it was said that Khaja Boo was entirely under the domination and control of her daughter; but that is only said incidentally in connection with the allegation of mental incapacity which allegation formed the real case of the plaintiff. And accordingly when the issues were settled there was a clear issue as to Khaja Boo being of unsound mind in 1889 but none with regard to undue influence.21. The Board therefore concluded that the question of undue influence was discussed and considered not upon evidence given with reference to that question, but upon evidence called for a totally different purpose.22. It will be noted that in this case no issue was raised of Prasanna having been of unsound mind at the date of the deed of gift and, as already noted, no issue was raised on undue influence at all. It is true that some evidence was adduced on the point as to whether Prasanna was of sound mind in the year 1944, but that was wholly negatived by the learned Subordinate Judge and his finding was not upset in appeal except by way of presumption which does not arise in law.There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock ones conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstance that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father.26. Once we come to the conclusion that the presumptions made by the learned Judges of the High Court were not warranted by law and that they did not take a view of the evidence adduced at the trial different from that of the Subordinate Judge on the facts of this case we must hold that the whole approach of the learned Judges of the High Court was wrong and as such their decision cannot be upheld.27. The learned Additional Solicitor General also wanted to argue that the suit was defective, because the plaintiff was out of possession and had not asked for a decree for possession in his plaint as he was bound to do if he was asking for a declaration of title to the property. It is to be noted that we did not think it necessary to go into this question and did not allow him to place the evidence on this point before us as we were of the view that the case of undue influence had not been sufficiently alleged either on the pleadings or substantiated on the evidenceinstant case is one of gift but it is well settled that the law as to undue influence is the same in the case of a gift inter vivos as in the case of a contract.It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kannappa Chettiar, 47 Ind App 1 at p. 3: (AIR 1920 PC 65 at p.The three stages for consideration of a case of undue influence were expounded in the case of Raghunath Prasad v. Sarju Prasad, 51 Ind App 101: (AIR 1924 PC 60) in the following wordsthe first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reachednamely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of theBefore, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal, (1964) 1 SCR 270 : (AIR 1963 SC 1279 ) above referred to.In the light of the above, it appears to us that there was no sufficient pleading of undue influence at all in therelevant portion of paragraph 4 of the plaint is asplaintiffs father along with defendant No.3 (the sister) on the advice of defendant No. 2 (the brother Balaram) without the knowledge of the plaintiff got a collusive Nirupan Patra executed regarding the said property on the 6th Sraban 1351 B. S. corresponding to 22nd July, 1944 in the name of the defendant No. 1 son of defendant No. 2 and had itthe plaintiff recently on 13th June 1952 last has come to know of the same through reports from the people....................... Moreover, the plaintiffs father being 90 years old at the time of execution of the said Nirupan Patra and being subject to senile decay in consequence thereof, he was devoid of the power of discrimination between good and evil. Hence he not having sound disposing mind had no power to execute the said deed of Nirupan Patra in favour of the defendant No. 1 being (not ?) in possession of his senses and he did not execute the same in good faith voluntarily and out of his free will. The plaintiff recently on 13th June 1952 last came to learn that defendant No. 2 taking advantage of the absence of the plaintiff and exercising undue influence upon him and having won over the defendant No. 3 also by holding out temptation and by misleading and exercising undue influence upon her got the said fraudulent deed of Nirupan Patra executed in favour of the defendant No. 1, his son living in joint mess with him".It will at once be noted from the above that the two portions of the extracts from paragraph 4 are in conflict with each other. According to the first portion the plaintiffs father Prasanna colluded with his sister on the advice of his brother to execute the deed of gift. The word "collusion" means a secret agreement for illegal purposes or a conspiracy. The use of the word "collusion suggests that Prasanna knew what he was about and that he did it secretly or fraudulently with the object of depriving the plaintiff. According to the second portion of the extract, Prasanna, because of his old age, was subject to senile decay and could not discriminate between good and evil. This hardly fits in with the case of collusion which implies that a man does something evil designedly. There is no suggestion in this paragraph of the plaint that Prasanna was under the domination of Balaram and that Balaram exercised his power over Prasanna to get the document executed and registered by Prasanna. It will be remembered that nominally the property stood in the name of the sister who was also a party to the document and according to the extract quoted above Balaram had exercised undue influence over her also.It will be noted at once that even the expression "undue influence" was not used in the issue. There was no issue as to whether thewas a person of unsound mind and whether he was under the domination of the second defendant.It will be noted that the High Court did not come to a finding that Balaram was in a position to dominate the will of his father (Subhas his son being only about 14 years of age at the date of the deed of gift). Nor did the High Court find that the transaction was an unconscionable one. The learned Judges made presumptions which were neither warranted by law nor supported by facts. Indeed, it appears to us that the learned Judges reached the third stage referred to in the case of, 51 Ind App 101: (AIR 1924 PC 60) completely overlooking the first two stages.The Board therefore concluded that the question of undue influence was discussed and considered not upon evidence given with reference to that question, but upon evidence called for a totally different purpose.It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94mere relations of daughter to mother, of course. in itself suggests nothing in the way of special influence or control. The evidence seems to their Lordships quite insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead to a presumption against any transaction between the two. With regard to the actual transactions in question there is no evidence whatever of undue influence brought to bear upon them.The same remarks may justly be made of the pleadings and the evidence adduced in this case. | 1 | 4,870 | 2,229 | ### Instruction:
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or their proceds. The son alleged in the plaint that at the time of the occurrence the mother was suffering from dementia and was not in a fit state of mind to execute contracts or to manage her affairs and was until July 1893 (she having died in the year1900) residing with the daughter and was completely under her domination and control. Before the learned Trial Judge a large mass of evidence was given directed to the question of Khaja Boos mental capacity in 1889. The learned Judge found that the plaintiff had failed to show that his mother was of unsound mind in 1889. The Court of Appeal came to the same conclusion. The learned Trial Judge, however, came to the conclusion that Khaja Boo at the period in question was entirely under the control and domination of her daughter and that the latter had unscrupulously used her power over her mother in order to get her mothers property into her own hands and that the whole proceedings ought to be avoided on the ground of undue influence. This finding was, however, reversed in appeal.20. The Judicial Committee took the view that the question of undue influence was never properly before the court at all. No such case was set up in the pleadings. The nearest approach to it was in the passage of the plaint already cited in which it was said that Khaja Boo was entirely under the domination and control of her daughter; but that is only said incidentally in connection with the allegation of mental incapacity which allegation formed the real case of the plaintiff. And accordingly when the issues were settled there was a clear issue as to Khaja Boo being of unsound mind in 1889 but none with regard to undue influence.21. The Board therefore concluded that the question of undue influence was discussed and considered not upon evidence given with reference to that question, but upon evidence called for a totally different purpose.22. It will be noted that in this case no issue was raised of Prasanna having been of unsound mind at the date of the deed of gift and, as already noted, no issue was raised on undue influence at all. It is true that some evidence was adduced on the point as to whether Prasanna was of sound mind in the year 1944, but that was wholly negatived by the learned Subordinate Judge and his finding was not upset in appeal except by way of presumption which does not arise in law.23. It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94 :-"The mere relations of daughter to mother, of course. in itself suggests nothing in the way of special influence or control. The evidence seems to their Lordships quite insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead to a presumption against any transaction between the two. With regard to the actual transactions in question there is no evidence whatever of undue influence brought to bear upon them."24. The same remarks may justly be made of the pleadings and the evidence adduced in this case.25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock ones conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstance that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father.26. Once we come to the conclusion that the presumptions made by the learned Judges of the High Court were not warranted by law and that they did not take a view of the evidence adduced at the trial different from that of the Subordinate Judge on the facts of this case we must hold that the whole approach of the learned Judges of the High Court was wrong and as such their decision cannot be upheld.27. The learned Additional Solicitor General also wanted to argue that the suit was defective, because the plaintiff was out of possession and had not asked for a decree for possession in his plaint as he was bound to do if he was asking for a declaration of title to the property. It is to be noted that we did not think it necessary to go into this question and did not allow him to place the evidence on this point before us as we were of the view that the case of undue influence had not been sufficiently alleged either on the pleadings or substantiated on the evidence adduced.
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will of the other. Once that position is substantiated the second stage has been reachednamely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of theBefore, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal, (1964) 1 SCR 270 : (AIR 1963 SC 1279 ) above referred to.In the light of the above, it appears to us that there was no sufficient pleading of undue influence at all in therelevant portion of paragraph 4 of the plaint is asplaintiffs father along with defendant No.3 (the sister) on the advice of defendant No. 2 (the brother Balaram) without the knowledge of the plaintiff got a collusive Nirupan Patra executed regarding the said property on the 6th Sraban 1351 B. S. corresponding to 22nd July, 1944 in the name of the defendant No. 1 son of defendant No. 2 and had itthe plaintiff recently on 13th June 1952 last has come to know of the same through reports from the people....................... Moreover, the plaintiffs father being 90 years old at the time of execution of the said Nirupan Patra and being subject to senile decay in consequence thereof, he was devoid of the power of discrimination between good and evil. Hence he not having sound disposing mind had no power to execute the said deed of Nirupan Patra in favour of the defendant No. 1 being (not ?) in possession of his senses and he did not execute the same in good faith voluntarily and out of his free will. The plaintiff recently on 13th June 1952 last came to learn that defendant No. 2 taking advantage of the absence of the plaintiff and exercising undue influence upon him and having won over the defendant No. 3 also by holding out temptation and by misleading and exercising undue influence upon her got the said fraudulent deed of Nirupan Patra executed in favour of the defendant No. 1, his son living in joint mess with him".It will at once be noted from the above that the two portions of the extracts from paragraph 4 are in conflict with each other. According to the first portion the plaintiffs father Prasanna colluded with his sister on the advice of his brother to execute the deed of gift. The word "collusion" means a secret agreement for illegal purposes or a conspiracy. The use of the word "collusion suggests that Prasanna knew what he was about and that he did it secretly or fraudulently with the object of depriving the plaintiff. According to the second portion of the extract, Prasanna, because of his old age, was subject to senile decay and could not discriminate between good and evil. This hardly fits in with the case of collusion which implies that a man does something evil designedly. There is no suggestion in this paragraph of the plaint that Prasanna was under the domination of Balaram and that Balaram exercised his power over Prasanna to get the document executed and registered by Prasanna. It will be remembered that nominally the property stood in the name of the sister who was also a party to the document and according to the extract quoted above Balaram had exercised undue influence over her also.It will be noted at once that even the expression "undue influence" was not used in the issue. There was no issue as to whether thewas a person of unsound mind and whether he was under the domination of the second defendant.It will be noted that the High Court did not come to a finding that Balaram was in a position to dominate the will of his father (Subhas his son being only about 14 years of age at the date of the deed of gift). Nor did the High Court find that the transaction was an unconscionable one. The learned Judges made presumptions which were neither warranted by law nor supported by facts. Indeed, it appears to us that the learned Judges reached the third stage referred to in the case of, 51 Ind App 101: (AIR 1924 PC 60) completely overlooking the first two stages.The Board therefore concluded that the question of undue influence was discussed and considered not upon evidence given with reference to that question, but upon evidence called for a totally different purpose.It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94mere relations of daughter to mother, of course. in itself suggests nothing in the way of special influence or control. The evidence seems to their Lordships quite insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead to a presumption against any transaction between the two. With regard to the actual transactions in question there is no evidence whatever of undue influence brought to bear upon them.The same remarks may justly be made of the pleadings and the evidence adduced in this case.
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Municipal Board Maunath Bhanjan Vs. Swadeshi Cotton Mills Co. Ltd. & Ors | of the tax had been reduced from R s.1/8/- to Re. 1/- per maund, and the necessary amendment had been made in the rate chart. An objection was also received from the Shoe Makers Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals. This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it was not necessary to republish the draft rules. The Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133. The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950. It was stated in the notification that the rules were published under section 300 of the Act, which required their previous publication, but there can be no doubt that it was a notification under sub-section (2) of section 135 as it was issued after receipt of the Boards special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950. It is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be observed in regard to the making of rules after previous publication.Ground No. 2. It is not in dispute that the special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950. had been fixed for the levy of the tax. It is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20, 1950, was rendered nugatory, or that it was necessary for the Board to pass another resolution. The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950, which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax. There was therefore no justification for taking the view that the resolution dated June 20, 1950 could not authorise the= imposition of the tax from July 15, 1950, merely because it was passed before the publication of the rules. At any rate any technical defect in the date of the resolution could not have the effect of making the imposition void in the facts and circumstances of this case.9. Ground No. 3. As has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authority of sub-section (2 ) of section 133, and it would not matter if it did not make a specific reference to that subsection and made a reference to section 300 instead. The High Court therefore erred in thinking that there was no notification under-sub-section (2) of section 135 at all. It is the nature of the notification which is decisive of the section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of section 135.We have thus no doubt that the notification had really been issued in compliance with the requirement of sub-sec- tion (2) of section 135 of the Act. That would attract the application of sub-section (3) of that section which provides as follows, --"135(3) A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act."10. So when a probative effect had been given by law making the notification of the imposition of the tax as "conclusive proof" that the tax had been imposed "in accordance with the provisions of the Act", no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to the law.11. It is not disputed that Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950. The Company started the construction of its factory in 1968-69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern. The Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Companys letter dated August 18, 1967. The Company prayed for the continuance of the exemption even after that time limit. The State Government however granted the exemption for five y ears. The Company started "importing" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the Company with effect from May, 1974. The Company once again applied for further exemption on August 14, 1973, but without success. It is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the. Company accept ed the validity thereof and prayed for exemption. It availed of that exemption, for some years, and applied for its extension until as late as August 14, 1973. It was only when further exemption was refused, that the Company thought of filing the writ petition. As has been shown, the Company did not, even then venture to point out any reason why the imposition could be said to be invalid, and merely stated that the "procedure" prescribed under sections 131-135 had not been followed. That was far too vague a plea to justify investigation and interference in the exercise of the extraordinary jurisdiction of the High Court under article 226 of the Constitution.12. | 1[ds]It will be re called that the High Court has found that the Company had not challenged the imposition of octroi on the ground that there was non-compliance with the provisions of sections 131 to 133. It cannot therefore be disputed that the draft rules were published as required by sub-section(3) of section 131. Moreover we find from the affidavit which has been filed on behalf of the Board that its Officer incharge wrote to the prescribed Authority on January 9, 1950, that the draft rules had been published in the "Sansar" on November 1, 1949, and may be sanctioned. A copy of that letter has been placed on the record. It may also be mentioned that the Officer Incharge wrote to the Commissioner intimating that only two objections had been received which were for reduction of the tax, and that after considering them the rate of the tax had been reduced from R s.1/8/- to Re. 1/- per maund, and the necessary amendment had been made in the rate chart. An objection was also received from the Shoe Makers Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals. This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it was not necessary to republish the draft rules. The Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133. The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950. It was stated in the notification that the rules were published under section 300 of the Act, which required their previous publication, but there can be no doubt that it was a notification under sub-section (2) of section 135 as it was issued after receipt of the Boards special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950. It is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be observed in regard to the making of rules after previousNo. 2. It is not in dispute that the special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950. had been fixed for the levy of the tax. It is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20, 1950, was rendered nugatory, or that it was necessary for the Board to pass another resolution. The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950, which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax. There was therefore no justification for taking the view that the resolution dated June 20, 1950 could not authorise the= imposition of the tax from July 15, 1950, merely because it was passed before the publication of the rules. At any rate any technical defect in the date of the resolution could not have the effect of making the imposition void in the facts and circumstances of thisNo. 3. As has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authority of sub-section (2 ) of section 133, and it would not matter if it did not make a specific reference to that subsection and made a reference to section 300 instead. The High Court therefore erred in thinking that there was no notification under-sub-section (2) of section 135 at all. It is the nature of the notification which is decisive of the section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of section 135.We have thus no doubt that the notification had really been issued in compliance with the requirement of sub-sec- tion (2) of section 135 of thewhen a probative effect had been given by law making the notification of the imposition of the tax as "conclusive proof" that the tax had been imposed "in accordance with the provisions of the Act", no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to theis not disputed that Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950. The Company started the construction of its factory in 1968-69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern. The Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Companys letter dated August 18, 1967. The Company prayed for the continuance of the exemption even after that time limit. The State Government however granted the exemption for five y ears. The Company started "importing" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the Company with effect from May, 1974. The Company once again applied for further exemption on August 14, 1973, but without success. It is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the. Company accept ed the validity thereof and prayed for exemption. It availed of that exemption, for some years, and applied for its extension until as late as August 14, 1973. It was only when further exemption was refused, that the Company thought of filing the writ petition. As has been shown, the Company did not, even then venture to point out any reason why the imposition could be said to be invalid, and merely stated that the "procedure" prescribed under sections 131-135 had not been followed. That was far too vague a plea to justify investigation and interference in the exercise of the extraordinary jurisdiction of the High Court under article 226 of the Constitution. | 1 | 2,391 | 1,225 | ### Instruction:
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of the tax had been reduced from R s.1/8/- to Re. 1/- per maund, and the necessary amendment had been made in the rate chart. An objection was also received from the Shoe Makers Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals. This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it was not necessary to republish the draft rules. The Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133. The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950. It was stated in the notification that the rules were published under section 300 of the Act, which required their previous publication, but there can be no doubt that it was a notification under sub-section (2) of section 135 as it was issued after receipt of the Boards special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950. It is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be observed in regard to the making of rules after previous publication.Ground No. 2. It is not in dispute that the special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950. had been fixed for the levy of the tax. It is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20, 1950, was rendered nugatory, or that it was necessary for the Board to pass another resolution. The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950, which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax. There was therefore no justification for taking the view that the resolution dated June 20, 1950 could not authorise the= imposition of the tax from July 15, 1950, merely because it was passed before the publication of the rules. At any rate any technical defect in the date of the resolution could not have the effect of making the imposition void in the facts and circumstances of this case.9. Ground No. 3. As has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authority of sub-section (2 ) of section 133, and it would not matter if it did not make a specific reference to that subsection and made a reference to section 300 instead. The High Court therefore erred in thinking that there was no notification under-sub-section (2) of section 135 at all. It is the nature of the notification which is decisive of the section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of section 135.We have thus no doubt that the notification had really been issued in compliance with the requirement of sub-sec- tion (2) of section 135 of the Act. That would attract the application of sub-section (3) of that section which provides as follows, --"135(3) A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act."10. So when a probative effect had been given by law making the notification of the imposition of the tax as "conclusive proof" that the tax had been imposed "in accordance with the provisions of the Act", no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to the law.11. It is not disputed that Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950. The Company started the construction of its factory in 1968-69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern. The Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Companys letter dated August 18, 1967. The Company prayed for the continuance of the exemption even after that time limit. The State Government however granted the exemption for five y ears. The Company started "importing" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the Company with effect from May, 1974. The Company once again applied for further exemption on August 14, 1973, but without success. It is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the. Company accept ed the validity thereof and prayed for exemption. It availed of that exemption, for some years, and applied for its extension until as late as August 14, 1973. It was only when further exemption was refused, that the Company thought of filing the writ petition. As has been shown, the Company did not, even then venture to point out any reason why the imposition could be said to be invalid, and merely stated that the "procedure" prescribed under sections 131-135 had not been followed. That was far too vague a plea to justify investigation and interference in the exercise of the extraordinary jurisdiction of the High Court under article 226 of the Constitution.12.
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the "Sansar" on November 1, 1949, and may be sanctioned. A copy of that letter has been placed on the record. It may also be mentioned that the Officer Incharge wrote to the Commissioner intimating that only two objections had been received which were for reduction of the tax, and that after considering them the rate of the tax had been reduced from R s.1/8/- to Re. 1/- per maund, and the necessary amendment had been made in the rate chart. An objection was also received from the Shoe Makers Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals. This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it was not necessary to republish the draft rules. The Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133. The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950. It was stated in the notification that the rules were published under section 300 of the Act, which required their previous publication, but there can be no doubt that it was a notification under sub-section (2) of section 135 as it was issued after receipt of the Boards special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950. It is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be observed in regard to the making of rules after previousNo. 2. It is not in dispute that the special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950. had been fixed for the levy of the tax. It is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20, 1950, was rendered nugatory, or that it was necessary for the Board to pass another resolution. The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950, which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax. There was therefore no justification for taking the view that the resolution dated June 20, 1950 could not authorise the= imposition of the tax from July 15, 1950, merely because it was passed before the publication of the rules. At any rate any technical defect in the date of the resolution could not have the effect of making the imposition void in the facts and circumstances of thisNo. 3. As has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authority of sub-section (2 ) of section 133, and it would not matter if it did not make a specific reference to that subsection and made a reference to section 300 instead. The High Court therefore erred in thinking that there was no notification under-sub-section (2) of section 135 at all. It is the nature of the notification which is decisive of the section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of section 135.We have thus no doubt that the notification had really been issued in compliance with the requirement of sub-sec- tion (2) of section 135 of thewhen a probative effect had been given by law making the notification of the imposition of the tax as "conclusive proof" that the tax had been imposed "in accordance with the provisions of the Act", no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to theis not disputed that Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950. The Company started the construction of its factory in 1968-69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern. The Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Companys letter dated August 18, 1967. The Company prayed for the continuance of the exemption even after that time limit. The State Government however granted the exemption for five y ears. The Company started "importing" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the Company with effect from May, 1974. The Company once again applied for further exemption on August 14, 1973, but without success. It is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the. Company accept ed the validity thereof and prayed for exemption. It availed of that exemption, for some years, and applied for its extension until as late as August 14, 1973. It was only when further exemption was refused, that the Company thought of filing the writ petition. As has been shown, the Company did not, even then venture to point out any reason why the imposition could be said to be invalid, and merely stated that the "procedure" prescribed under sections 131-135 had not been followed. That was far too vague a plea to justify investigation and interference in the exercise of the extraordinary jurisdiction of the High Court under article 226 of the Constitution.
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General Manager, Bhilai Steelproject, Bhilai Vs. Steelworkers' Union, Bhopal And 0 Rs | Government was not given to the application of this Act, the Madhya Pradesh Act XIX of 1959, to Bhilai. At the same time, it is not open to dispute before us that the Steel Industry at Bhilai was an industrial establishment under the control of the Central Government. There was a faint attempt on the part of the learned Counsel, who appeared before us on behalf of the respondents, to suggest that the Steel Industry at Bhilai was not under the control of the Central Government. No such point appears to have been raised either before Mr. Sanyal or the Industrial Court. So, we did not permit the respondents to raise this point for the first time here. It may also be mentioned in this connection that in the very notification made by the Madhya Pradesh Government on July 22, 1958, that Government made the definite statement that the Steel Industry at Bhilai was carried on under the authority of the Central Government. We think it reasonable to presume for the purpose of these appeals that this statement made by the Government of Madhya Pradesh was correct. It follows therefore that the Bhilai Steel Industry was an industrial establishment under the control of the Central Government within the meaning of the proviso to S. 1. Sub-s. (3) of Act XIX of 1959 and consequently in the absence of the consent of the Central Government it did not apply to the Bhilai Steel Industry. On and after December 31, 1960, therefore neither S. 30 of the 1947 Act nor Act XIX of 1959 applied to the Bhilai Steel Industry. There is no escape therefore from the conclusion that on and after December 31, 1960, the Bhilai Steel Industry was governed as regards the matter of standing orders by the Central Standing Orders Act of 1946.6. This continued to be the position till November 25, 1961 when Act XIX of 1959 was repealed and was replaced by the Madhya Pradesh Act XXVI of 1961, the Madhya Pradesh Industrial Establishment Standing Orders Act, 1961. It would seem that this Act was applicable to the Bhilai Steel Industry as it did not contain any provision similar to the one in section 1. sub-s. (3) of the 1959 Act. The Madhya Pradesh Act No. XXVI of 1961 was however amended in 1962 by the Madhya Pradesh Act 5 of 1962. This Amending Act added to sub-s. (1) of S. 2 of the 1961 Act the following provision:"Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Government or a railway administration or a mine or an oil field.7. The effect of this was that Act XXVI of 1961 which became applicable to the Bhilai Steel Industry on November 25, 1961 ceased to be applicable to the Bhilai Steel Industry on and from April 29, 1962, when the President assented to the Amending Act. After this date the position again became the same as it was immediately before the Madhya Pradesh Act 26 of 1961 came into force. That is, none of the Madhya Pradesh Acts about the standing orders was applicable to the Bhilai Steel Industry. So, the field was open for the Central Standing Orders Act to operate in respect of the Bhilai Steel Industry on and from the date when the Madhya Pradesh Act V of 1962 came into force.8. We have therefore reached the conclusion that for sometime before August 6, 1962 when the order of certification was passed, the Certifying Officer under the Central Government Standing Orders Act had become competent to certify the standing orders for the Bhilai Steel Industry.9. The Industrial Court took note of the position that on the matter of the standing orders the 1947 Act was repealed by the 1959 Act with effect from December 31, 1960. It was however of opinion that there being no specific saving clause in the Act of 1959 as regards the notification of July 22, 1958, the Act of 1947 applied to the Bhilai Steel Industry and that Notification not having been superseded by any subsequent notification it continued to be effective in respect of the Bhilai Steel Industry under S. 25 of the Madhya Pradesh General Clauses Act. On this view of the effect of S. 25 of the Madhya Pradesh General Clauses Act it based its conclusion that the State Act continued to be applicable to the Bhilai Steel Industry.10. We are of opinion that S. 25 of the Madhya Pradesh General Clauses Act could not save the notification in question after the 1947 Act was repealed. That section provides:-"Where any enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the provisions so re-enacted.11. It appears clear to us that the effect of the proviso to S. 1, sub-s. (3) of Act XIX of 1959 being that this new Act - the re-enacted legislation - did not apply to Bhilai the notification already issued under the old Act was clearly inconsistent with the new legislation, Section 25 of the Madhya Pradesh General Clauses Act was therefore of no avail and could not save that notification.12. For the reasons mentioned above, we have come to the conclusion that though on June 9, 1960, when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act the Certifying Officer had no jurisdiction to deal with them, the Officer had acquired jurisdiction in the matter before August 6, 1962, when he passed the order certifying the standing orders. | 1[ds]10. We are of opinion that S. 25 of the Madhya Pradesh General Clauses Act could not save the notification in question after the 1947 Act was repealed. That sectionany enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the provisions so re-enacted.It appears clear to us that the effect of the proviso to S. 1, sub-s. (3) of Act XIX of 1959 being that this new Act - the re-enacted legislation - did not apply to Bhilai the notification already issued under the old Act was clearly inconsistent with the new legislation, Section 25 of the Madhya Pradesh General Clauses Act was therefore of no avail and could not save that notification.12. For the reasons mentioned above, we have come to the conclusion that though on June 9, 1960, when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act the Certifying Officer had no jurisdiction to deal with them, the Officer had acquired jurisdiction in the matter before August 6, 1962, when he passed the order certifying the standing orders. | 1 | 2,086 | 294 | ### 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:
Government was not given to the application of this Act, the Madhya Pradesh Act XIX of 1959, to Bhilai. At the same time, it is not open to dispute before us that the Steel Industry at Bhilai was an industrial establishment under the control of the Central Government. There was a faint attempt on the part of the learned Counsel, who appeared before us on behalf of the respondents, to suggest that the Steel Industry at Bhilai was not under the control of the Central Government. No such point appears to have been raised either before Mr. Sanyal or the Industrial Court. So, we did not permit the respondents to raise this point for the first time here. It may also be mentioned in this connection that in the very notification made by the Madhya Pradesh Government on July 22, 1958, that Government made the definite statement that the Steel Industry at Bhilai was carried on under the authority of the Central Government. We think it reasonable to presume for the purpose of these appeals that this statement made by the Government of Madhya Pradesh was correct. It follows therefore that the Bhilai Steel Industry was an industrial establishment under the control of the Central Government within the meaning of the proviso to S. 1. Sub-s. (3) of Act XIX of 1959 and consequently in the absence of the consent of the Central Government it did not apply to the Bhilai Steel Industry. On and after December 31, 1960, therefore neither S. 30 of the 1947 Act nor Act XIX of 1959 applied to the Bhilai Steel Industry. There is no escape therefore from the conclusion that on and after December 31, 1960, the Bhilai Steel Industry was governed as regards the matter of standing orders by the Central Standing Orders Act of 1946.6. This continued to be the position till November 25, 1961 when Act XIX of 1959 was repealed and was replaced by the Madhya Pradesh Act XXVI of 1961, the Madhya Pradesh Industrial Establishment Standing Orders Act, 1961. It would seem that this Act was applicable to the Bhilai Steel Industry as it did not contain any provision similar to the one in section 1. sub-s. (3) of the 1959 Act. The Madhya Pradesh Act No. XXVI of 1961 was however amended in 1962 by the Madhya Pradesh Act 5 of 1962. This Amending Act added to sub-s. (1) of S. 2 of the 1961 Act the following provision:"Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Government or a railway administration or a mine or an oil field.7. The effect of this was that Act XXVI of 1961 which became applicable to the Bhilai Steel Industry on November 25, 1961 ceased to be applicable to the Bhilai Steel Industry on and from April 29, 1962, when the President assented to the Amending Act. After this date the position again became the same as it was immediately before the Madhya Pradesh Act 26 of 1961 came into force. That is, none of the Madhya Pradesh Acts about the standing orders was applicable to the Bhilai Steel Industry. So, the field was open for the Central Standing Orders Act to operate in respect of the Bhilai Steel Industry on and from the date when the Madhya Pradesh Act V of 1962 came into force.8. We have therefore reached the conclusion that for sometime before August 6, 1962 when the order of certification was passed, the Certifying Officer under the Central Government Standing Orders Act had become competent to certify the standing orders for the Bhilai Steel Industry.9. The Industrial Court took note of the position that on the matter of the standing orders the 1947 Act was repealed by the 1959 Act with effect from December 31, 1960. It was however of opinion that there being no specific saving clause in the Act of 1959 as regards the notification of July 22, 1958, the Act of 1947 applied to the Bhilai Steel Industry and that Notification not having been superseded by any subsequent notification it continued to be effective in respect of the Bhilai Steel Industry under S. 25 of the Madhya Pradesh General Clauses Act. On this view of the effect of S. 25 of the Madhya Pradesh General Clauses Act it based its conclusion that the State Act continued to be applicable to the Bhilai Steel Industry.10. We are of opinion that S. 25 of the Madhya Pradesh General Clauses Act could not save the notification in question after the 1947 Act was repealed. That section provides:-"Where any enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the provisions so re-enacted.11. It appears clear to us that the effect of the proviso to S. 1, sub-s. (3) of Act XIX of 1959 being that this new Act - the re-enacted legislation - did not apply to Bhilai the notification already issued under the old Act was clearly inconsistent with the new legislation, Section 25 of the Madhya Pradesh General Clauses Act was therefore of no avail and could not save that notification.12. For the reasons mentioned above, we have come to the conclusion that though on June 9, 1960, when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act the Certifying Officer had no jurisdiction to deal with them, the Officer had acquired jurisdiction in the matter before August 6, 1962, when he passed the order certifying the standing orders.
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1
### Explanation:
10. We are of opinion that S. 25 of the Madhya Pradesh General Clauses Act could not save the notification in question after the 1947 Act was repealed. That sectionany enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation, form or bye-law made or issued under the provisions so re-enacted.It appears clear to us that the effect of the proviso to S. 1, sub-s. (3) of Act XIX of 1959 being that this new Act - the re-enacted legislation - did not apply to Bhilai the notification already issued under the old Act was clearly inconsistent with the new legislation, Section 25 of the Madhya Pradesh General Clauses Act was therefore of no avail and could not save that notification.12. For the reasons mentioned above, we have come to the conclusion that though on June 9, 1960, when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act the Certifying Officer had no jurisdiction to deal with them, the Officer had acquired jurisdiction in the matter before August 6, 1962, when he passed the order certifying the standing orders.
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Commissioner of Income-Tax & Excess Profits Tax, Madras Vs. R.S.A. Sankara Ayyar | One of the outstanding was a debt due from the firm of Kadir Pillai Harakayar on a mortgage. A final decree was obtained against the said firm in the year 1940. In execution of that decree, certain lands of the debtor were sold.On 11-9-1942, a sum of Rs. 16,395-14-10 was due under the decree when the two partners decided to close the accounts of the partnership and in pursuance of that decision the outstandings were divided between them. On 12-9-1942, the respondent entered a sum of Rs 8,197, representing half of the said sum due from the debtor under the decree, in the books of his own separate money lending business which he was carrying on as manager of the family. A separate account was opened in these books in the name of the debtor. There were certain money receipts towards the discharge of the debt during the accounting period.The total amount realised subsequent to 12-9-l942, came to Rs. 4,664 and the respondent credited half of this amount, i.e., Rs. 2,332 in his account as his share. On 5-10-1943, the respondent wrote off the sum of Rs. 5,880. which was still due to him from the debtor out of the amount of Rs. 8,197, as irrecoverable.3. In the assessment year 1944-45, (accounting year 1943-44), the respondent claimed an allowance of the aforesaid sum of Rs. 5,880 as a bad debt under S.. 10(2) (xi) of the Act. The claim was disallowed by the Income-tax Officer. On appeal, the Appellate Assistant Commissioner allowed the claim and held that the bad debt had been taken over by the respondent as a part of the money-lending business and that the loss was sustained in the separate business carried on by him. On appeal, the Income-tax Appellate Tribunal confirmed this decision. On an application made to it, the Tribunal referred the following two question for the decision of the High Court:(1) Whether there is any material for the Tribunals finding that the bad debt of Rs. 5,880 claimed by the assessee arose in respect of a loan made in the ordinary course of his money-lending business, within the meaning of s. 10(2) (xi), Income-tax Act?(2) Whether, on the facts and in the circumstances of the case, the assessees claim to write off the sum of Rs. 5,880 towards his share of the irrecoverable portion of the decree debt in the assessment year is admissible under S. 10(2) (xi), Income-tax Act?The reference was answered in the affirmative by the High Court. It, however, granted a certificate to file an appeal to this Court.4. The only point to be decided in this appeal is whether, on the facts and in the circumstances under which the sum of Rs. 8,197 was dealt with by the respondent, it is a permissible deduction from his income under S. 10(2) (xi), Income-tax Act in the assessment year.5. The High Court on examining the accounts of the partnership as well as of the respondent reached the following conclusion:"In the present case, the debt had ripened into a decree in favour of both the partners, and we fail to see what novation there could be after decree. There is no authority to support the contention on behalf of the Department that there should be a novation or an act by the debtor also, before it can be held that the old loans though treated as part of the stock-in-trade of the new business can be held to be loans made in ordinary course of the new business."6. While granting leave to the petitioner, the learned Judges said as follows:The construction to be placed on the above words (i.e., loans made in the ordinary course of such business) is of great importance in this province having regard to the practice prevalent among Nattukottai Chettis in particular who conduct family money lending business, that at a partition among the coparceners of the family the debts due to the undivided family firm are allotted between the several coparceners who, after the division set up independent money lending business treating the debts assigned to them as debts of the new business.6a. The learned Attorney-General argued that in this case after the business of the partnership was closed, the outstandings of the old business taken over by the respondent became a capital asset of the assessees new business and could not be held to be loans made in the course of the new business. We are unable to uphold this contention. The Tribunal, on a consideration of the entries in the books of the partnership and of the assessees produced before it, reached the conclusion that the respondent had treated his share of the outstanding debt due under the decree as a part of his money lending business and as a loan given by the assessees money lending business to the debtor.The learned Attorney-General strenuously contended that the entries in the books of account could not possibly support the conclusion reached by the Tribunal, and that there were no materials for reaching that finding. We are unable to agree. The entries are fully capable of the construction placed on them by the Assistant Commissioner and the Income-tax Appellate Tribunal. The facts are that when a division was made between the partners on 12-9-1942, the books of the partnership were closed, an account of the debtor was opened in the family books and he was debited with the amount of Rs. 8,197, indicating that he became a debtor of the new partnership of the business and the debt became a loan advanced by the assessees money lending business to the debtor. When later on there were payments the debtor received credit for such payments in this account with the respondent and must have got a discharge receipt from him. He was thus recognised as a debtor of the new firm and the amount in question being a loan of the money lending business of the respondent, it, was an admissible deduction under S. 10(2) (xi) of the Act. | 1[ds]5. The High Court on examining the accounts of the partnership as well as of the respondent reached the followingthe present case, the debt had ripened into a decree in favour of both the partners, and we fail to see what novation there could be after decree. There is no authority to support the contention on behalf of the Department that there should be a novation or an act by the debtor also, before it can be held that the old loans though treated as part of theof the new business can be held to be loans made in ordinary course of the new business.While granting leave to the petitioner, the learned Judges said as follows:The construction to be placed on the above words (i.e., loans made in the ordinary course of such business) is of great importance in this province having regard to the practice prevalent among Nattukottai Chettis in particular who conduct family money lending business, that at a partition among the coparceners of the family the debts due to the undivided family firm are allotted between the several coparceners who, after the division set up independent money lending business treating the debts assigned to them as debts of the newTribunal, on a consideration of the entries in the books of the partnership and of the assessees produced before it, reached the conclusion that the respondent had treated his share of the outstanding debt due under the decree as a part of his money lending business and as a loan given by the assessees money lending business to theare unable to agree. The entries are fully capable of the construction placed on them by the Assistant Commissioner and theAppellate Tribunal. The facts are that when a division was made between the partners onthe books of the partnership were closed, an account of the debtor was opened in the family books and he was debited with the amount of Rs. 8,197, indicating that he became a debtor of the new partnership of the business and the debt became a loan advanced by the assessees money lending business to the debtor. When later on there were payments the debtor received credit for such payments in this account with the respondent and must have got a discharge receipt from him. He was thus recognised as a debtor of the new firm and the amount in question being a loan of the money lending business of the respondent, it, was an admissible deduction under S. 10(2) (xi) of the Act. | 1 | 1,224 | 452 | ### 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:
One of the outstanding was a debt due from the firm of Kadir Pillai Harakayar on a mortgage. A final decree was obtained against the said firm in the year 1940. In execution of that decree, certain lands of the debtor were sold.On 11-9-1942, a sum of Rs. 16,395-14-10 was due under the decree when the two partners decided to close the accounts of the partnership and in pursuance of that decision the outstandings were divided between them. On 12-9-1942, the respondent entered a sum of Rs 8,197, representing half of the said sum due from the debtor under the decree, in the books of his own separate money lending business which he was carrying on as manager of the family. A separate account was opened in these books in the name of the debtor. There were certain money receipts towards the discharge of the debt during the accounting period.The total amount realised subsequent to 12-9-l942, came to Rs. 4,664 and the respondent credited half of this amount, i.e., Rs. 2,332 in his account as his share. On 5-10-1943, the respondent wrote off the sum of Rs. 5,880. which was still due to him from the debtor out of the amount of Rs. 8,197, as irrecoverable.3. In the assessment year 1944-45, (accounting year 1943-44), the respondent claimed an allowance of the aforesaid sum of Rs. 5,880 as a bad debt under S.. 10(2) (xi) of the Act. The claim was disallowed by the Income-tax Officer. On appeal, the Appellate Assistant Commissioner allowed the claim and held that the bad debt had been taken over by the respondent as a part of the money-lending business and that the loss was sustained in the separate business carried on by him. On appeal, the Income-tax Appellate Tribunal confirmed this decision. On an application made to it, the Tribunal referred the following two question for the decision of the High Court:(1) Whether there is any material for the Tribunals finding that the bad debt of Rs. 5,880 claimed by the assessee arose in respect of a loan made in the ordinary course of his money-lending business, within the meaning of s. 10(2) (xi), Income-tax Act?(2) Whether, on the facts and in the circumstances of the case, the assessees claim to write off the sum of Rs. 5,880 towards his share of the irrecoverable portion of the decree debt in the assessment year is admissible under S. 10(2) (xi), Income-tax Act?The reference was answered in the affirmative by the High Court. It, however, granted a certificate to file an appeal to this Court.4. The only point to be decided in this appeal is whether, on the facts and in the circumstances under which the sum of Rs. 8,197 was dealt with by the respondent, it is a permissible deduction from his income under S. 10(2) (xi), Income-tax Act in the assessment year.5. The High Court on examining the accounts of the partnership as well as of the respondent reached the following conclusion:"In the present case, the debt had ripened into a decree in favour of both the partners, and we fail to see what novation there could be after decree. There is no authority to support the contention on behalf of the Department that there should be a novation or an act by the debtor also, before it can be held that the old loans though treated as part of the stock-in-trade of the new business can be held to be loans made in ordinary course of the new business."6. While granting leave to the petitioner, the learned Judges said as follows:The construction to be placed on the above words (i.e., loans made in the ordinary course of such business) is of great importance in this province having regard to the practice prevalent among Nattukottai Chettis in particular who conduct family money lending business, that at a partition among the coparceners of the family the debts due to the undivided family firm are allotted between the several coparceners who, after the division set up independent money lending business treating the debts assigned to them as debts of the new business.6a. The learned Attorney-General argued that in this case after the business of the partnership was closed, the outstandings of the old business taken over by the respondent became a capital asset of the assessees new business and could not be held to be loans made in the course of the new business. We are unable to uphold this contention. The Tribunal, on a consideration of the entries in the books of the partnership and of the assessees produced before it, reached the conclusion that the respondent had treated his share of the outstanding debt due under the decree as a part of his money lending business and as a loan given by the assessees money lending business to the debtor.The learned Attorney-General strenuously contended that the entries in the books of account could not possibly support the conclusion reached by the Tribunal, and that there were no materials for reaching that finding. We are unable to agree. The entries are fully capable of the construction placed on them by the Assistant Commissioner and the Income-tax Appellate Tribunal. The facts are that when a division was made between the partners on 12-9-1942, the books of the partnership were closed, an account of the debtor was opened in the family books and he was debited with the amount of Rs. 8,197, indicating that he became a debtor of the new partnership of the business and the debt became a loan advanced by the assessees money lending business to the debtor. When later on there were payments the debtor received credit for such payments in this account with the respondent and must have got a discharge receipt from him. He was thus recognised as a debtor of the new firm and the amount in question being a loan of the money lending business of the respondent, it, was an admissible deduction under S. 10(2) (xi) of the Act.
### Response:
1
### Explanation:
5. The High Court on examining the accounts of the partnership as well as of the respondent reached the followingthe present case, the debt had ripened into a decree in favour of both the partners, and we fail to see what novation there could be after decree. There is no authority to support the contention on behalf of the Department that there should be a novation or an act by the debtor also, before it can be held that the old loans though treated as part of theof the new business can be held to be loans made in ordinary course of the new business.While granting leave to the petitioner, the learned Judges said as follows:The construction to be placed on the above words (i.e., loans made in the ordinary course of such business) is of great importance in this province having regard to the practice prevalent among Nattukottai Chettis in particular who conduct family money lending business, that at a partition among the coparceners of the family the debts due to the undivided family firm are allotted between the several coparceners who, after the division set up independent money lending business treating the debts assigned to them as debts of the newTribunal, on a consideration of the entries in the books of the partnership and of the assessees produced before it, reached the conclusion that the respondent had treated his share of the outstanding debt due under the decree as a part of his money lending business and as a loan given by the assessees money lending business to theare unable to agree. The entries are fully capable of the construction placed on them by the Assistant Commissioner and theAppellate Tribunal. The facts are that when a division was made between the partners onthe books of the partnership were closed, an account of the debtor was opened in the family books and he was debited with the amount of Rs. 8,197, indicating that he became a debtor of the new partnership of the business and the debt became a loan advanced by the assessees money lending business to the debtor. When later on there were payments the debtor received credit for such payments in this account with the respondent and must have got a discharge receipt from him. He was thus recognised as a debtor of the new firm and the amount in question being a loan of the money lending business of the respondent, it, was an admissible deduction under S. 10(2) (xi) of the Act.
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North East Finance Corporation Ltd. and Another Vs. U.O.I. and Others | SLP(C) No. 14808/99 This Court on 9th January, 2001 passed the following Order:"........learned counsel for the petitioner states, which is also incorporated in I.A. No.10, he wants to be discharged as in spite of letters written by him to the petitioner, he is not responding learned counsel for the parties states that this matter is being adjourned time and again which is affecting many of the depositors as no relief is being given in view of the pendency of this matter in this Court. However, in view of the said application, we direct the Registrar to issue fresh notice to the petitioner stating his counsel has withdrawn from the case hence he may, if he is so advised, engage another counsel. The Registry shall give next date of hearing after six weeks from today. The notice shall also state that in case after service of notice he does not choose to appear or through counsel, the Court will proceed to examine his petition and decide the matter." * As learned counsel for the petitioner Mr.Parijat Sinha was not getting response we ordered the Registry to sent notices to the petitioner. As per office report dated 12th March, 2001, the unserved registered covers containing notices from both the petitioners have been received back with the postal remarks `no such firm is existed at present, `not known respectively. Notice was also issued to District and Sessions Judge which has also been received back unserved with the postal remark `no such company or corporation in the name and style in Tibet Road Area nor there is any such person named-Ashok Dey carrying on business at Tibet Road, Gangtok.:3: The matter was taken up today again. There is none to press this petition. | 0[ds]As learned counsel for the petitioner Mr.Parijat Sinha was not getting response we ordered the Registry to sent notices to the petitioner. As per office report dated 12th March, 2001, the unserved registered covers containing notices from both the petitioners have been received back with the postal remarks `no such firm is existed at present, `not known respectively. Notice was also issued to District and Sessions Judge which has also been received back unserved with the postal remark `no such company or corporation in the name and style in Tibet Road Area nor there is any such personDey carrying on business at Tibet Road, Gangtok.:3: The matter was taken up today again. There is none to press this petition. | 0 | 326 | 137 | ### Instruction:
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SLP(C) No. 14808/99 This Court on 9th January, 2001 passed the following Order:"........learned counsel for the petitioner states, which is also incorporated in I.A. No.10, he wants to be discharged as in spite of letters written by him to the petitioner, he is not responding learned counsel for the parties states that this matter is being adjourned time and again which is affecting many of the depositors as no relief is being given in view of the pendency of this matter in this Court. However, in view of the said application, we direct the Registrar to issue fresh notice to the petitioner stating his counsel has withdrawn from the case hence he may, if he is so advised, engage another counsel. The Registry shall give next date of hearing after six weeks from today. The notice shall also state that in case after service of notice he does not choose to appear or through counsel, the Court will proceed to examine his petition and decide the matter." * As learned counsel for the petitioner Mr.Parijat Sinha was not getting response we ordered the Registry to sent notices to the petitioner. As per office report dated 12th March, 2001, the unserved registered covers containing notices from both the petitioners have been received back with the postal remarks `no such firm is existed at present, `not known respectively. Notice was also issued to District and Sessions Judge which has also been received back unserved with the postal remark `no such company or corporation in the name and style in Tibet Road Area nor there is any such person named-Ashok Dey carrying on business at Tibet Road, Gangtok.:3: The matter was taken up today again. There is none to press this petition.
### Response:
0
### Explanation:
As learned counsel for the petitioner Mr.Parijat Sinha was not getting response we ordered the Registry to sent notices to the petitioner. As per office report dated 12th March, 2001, the unserved registered covers containing notices from both the petitioners have been received back with the postal remarks `no such firm is existed at present, `not known respectively. Notice was also issued to District and Sessions Judge which has also been received back unserved with the postal remark `no such company or corporation in the name and style in Tibet Road Area nor there is any such personDey carrying on business at Tibet Road, Gangtok.:3: The matter was taken up today again. There is none to press this petition.
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Bangaru Narasingha Rao Naidu and Others Vs. Revenue Divisional Officer, Vizianagaram | uprooted from where they were previously living as a result of the extension of the K.G. Hospital in Visakhapatnam. The Land Acquisition Officer first separately calculated the average price of land under deeds of sale of land in the neighbourhood in each of the three years 1950, 1951 and 1952 thereafter took the average of the three figures so obtained. He awarded compensation at that final average rate which was Rs. 6.14 annas per sq. yard. On references made under Section 18 of the Land Acquisition Act at the instance of the claimants the learned Subordinate Judge of Visakhapatnam enhanced the compensation to Rs. 11 per sq. yard. The learned Subordinate Judge, primarily, took into account Exs. B-11 and B-12 which were sale deeds dated September 12, 1950 and January 29, 1951, in respect of parcels of land out of the very acquired land. Before the learned Subordinate Judge, the Land Acquisition Officer, placed reliance upon certain transactions of sale in respect of plots of land in the neighbourhood of the acquired land. In regard to the plots of land covered by Exs. B-1 to B-10, the learned Subordinate Judge expressed the view that those plots of land were purchased by the very squatters who were in possession of the land and, therefore, they did not fetch a good price. Similarly in regard to the plots of and covered by Exs. B-13, B-14 and B-16 the learned Subordinate Judge observed that they fetched a low price because they were very near the public latrine. The Land Acquisition Officer preferred appeals to the High Court of Andhra Pradesh. The High Court reduced the compensation to that awarded by the Land Acquisition Officer. The High Court while not disagreeing with the views of the learned Subordinate Judge that Exs. B-11 and B-12 were genuine transactions, also took into consideration the transactions covered by Exs. B-1 to B-10, B-13, B-14, B-15 and B-16. The claimants have preferred these two appeals.2. There cannot be any doubt that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of the very acquired land, provided of course there is nothing to doubt the authenticity of the transactions. In the present case we have two such transactions of sale, of parcels of the acquired land, Exs. B-11 and B-12. The learned Subordinate Judge relied upon them in assessing the compensation. The High Court also recorded a finding that Exs. B-11 and B-12 were genuine transactions. The High Court, however, thought that the price under these documents might have been inflated as it was known even in 1948 that some land was proposed to be acquired for providing houses to the sweepers and scavengers. We are afraid that this was pure speculation on the part of the High Court. In fact what was proposed to be acquired in 1948 was some other land. That proposal was later abandoned and there is nothing to indicate that there was any proposal for the acquisition of land in T.S. No. 1123 at the time when the sales under B-11 and B-12 were effected. The Land Acquisition Officer who gave evidence RW 1 stated as follows : "I have no personal knowledge to state that the transactions were not genuine or that the price mentioned in the sale deeds are not genuine. We also have no other evidence to show that the said transactions were not genuine".3. The High Court appeared to place reliance upon Exs. B-1 to B-10. We consider the High Court was wrong in thinking that Exs. B-1 to B-10 could afford proper guidance in the matter of assessing compensation for the acquired land. Apart from the circumstance that they related to plots of land which were not parcels of T.S. No. 1123, the evidence quite clearly shows that those plots of land were in the possession of squatters. The High Court thought that because the sales were voluntary sales the price which was paid under Exs. B-1 to B-10 was a fair price. That is not true. That is to ignore the circumstance noticed by the learned Subordinate Judge that lands in the occupation of squatters will not fetch a fair price unless the lands are cleared of squatters.4. In regard to the transactions B-13, B-14 and B-16, the High Court referred to the evidence of PW 1 to the effect that the lands covered by them were very near a public latrine but observed that there was no other evidence apart from the evidence of that witness. The High Court gave no reason for rejecting the testimony of PW 1.5. We may also mention here that the High Court stated repeatedly that no objection was taken by the claimants to Exs. B-1 to B-10, B-13, B-14 and B-16 before the Land Acquisition Officer. We are unable to understand what the High Court precisely meant by this statement. If the High Court meant that the claimant should have opposed the consideration of these documents by the Land Acquisition Officer a clear answer is that they did not have the opportunity of doing so since the Land Acquisition Officer did not inform them in advance on which document he proposed to rely for making his award. In any case, whether objection was raised or not before the Land Acquisition Officer, it was open to the claimants to adduce evidence before the Court in order to point out that the Land Acquisition Officer ought not have relied upon the transactions on which he relied and that he should have been guided by some other transactions. We notice that the conclusion of the High Court was considerably coloured by the statement repeatedly made that the claimants did not object to these documents before the Land Acquisition Officer.6. We are satisfied that the High Court should not have interfered with the award of compensation made by the learned Subordinate Judge for the acquired land at the rate of Rs. 11 per sq. yard. | 1[ds]5. We may also mention here that the High Court stated repeatedly that no objection was taken by the claimants to Exs.4 andbefore the Land Acquisition Officer. We are unable to understand what the High Court precisely meant by this statement. If the High Court meant that the claimant should have opposed the consideration of these documents by the Land Acquisition Officer a clear answer is that they did not have the opportunity of doing so since the Land Acquisition Officer did not inform them in advance on which document he proposed to rely for making his award. In any case, whether objection was raised or not before the Land Acquisition Officer, it was open to the claimants to adduce evidence before the Court in order to point out that the Land Acquisition Officer ought not have relied upon the transactions on which he relied and that he should have been guided by some other transactions. We notice that the conclusion of the High Court was considerably coloured by the statement repeatedly made that the claimants did not object to these documents before the Land Acquisition Officer.6. We are satisfied that the High Court should not have interfered with the award of compensation made by the learned Subordinate Judge for the acquired land at the rate of Rs. 11 per sq. yard. | 1 | 1,159 | 237 | ### Instruction:
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uprooted from where they were previously living as a result of the extension of the K.G. Hospital in Visakhapatnam. The Land Acquisition Officer first separately calculated the average price of land under deeds of sale of land in the neighbourhood in each of the three years 1950, 1951 and 1952 thereafter took the average of the three figures so obtained. He awarded compensation at that final average rate which was Rs. 6.14 annas per sq. yard. On references made under Section 18 of the Land Acquisition Act at the instance of the claimants the learned Subordinate Judge of Visakhapatnam enhanced the compensation to Rs. 11 per sq. yard. The learned Subordinate Judge, primarily, took into account Exs. B-11 and B-12 which were sale deeds dated September 12, 1950 and January 29, 1951, in respect of parcels of land out of the very acquired land. Before the learned Subordinate Judge, the Land Acquisition Officer, placed reliance upon certain transactions of sale in respect of plots of land in the neighbourhood of the acquired land. In regard to the plots of land covered by Exs. B-1 to B-10, the learned Subordinate Judge expressed the view that those plots of land were purchased by the very squatters who were in possession of the land and, therefore, they did not fetch a good price. Similarly in regard to the plots of and covered by Exs. B-13, B-14 and B-16 the learned Subordinate Judge observed that they fetched a low price because they were very near the public latrine. The Land Acquisition Officer preferred appeals to the High Court of Andhra Pradesh. The High Court reduced the compensation to that awarded by the Land Acquisition Officer. The High Court while not disagreeing with the views of the learned Subordinate Judge that Exs. B-11 and B-12 were genuine transactions, also took into consideration the transactions covered by Exs. B-1 to B-10, B-13, B-14, B-15 and B-16. The claimants have preferred these two appeals.2. There cannot be any doubt that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of the very acquired land, provided of course there is nothing to doubt the authenticity of the transactions. In the present case we have two such transactions of sale, of parcels of the acquired land, Exs. B-11 and B-12. The learned Subordinate Judge relied upon them in assessing the compensation. The High Court also recorded a finding that Exs. B-11 and B-12 were genuine transactions. The High Court, however, thought that the price under these documents might have been inflated as it was known even in 1948 that some land was proposed to be acquired for providing houses to the sweepers and scavengers. We are afraid that this was pure speculation on the part of the High Court. In fact what was proposed to be acquired in 1948 was some other land. That proposal was later abandoned and there is nothing to indicate that there was any proposal for the acquisition of land in T.S. No. 1123 at the time when the sales under B-11 and B-12 were effected. The Land Acquisition Officer who gave evidence RW 1 stated as follows : "I have no personal knowledge to state that the transactions were not genuine or that the price mentioned in the sale deeds are not genuine. We also have no other evidence to show that the said transactions were not genuine".3. The High Court appeared to place reliance upon Exs. B-1 to B-10. We consider the High Court was wrong in thinking that Exs. B-1 to B-10 could afford proper guidance in the matter of assessing compensation for the acquired land. Apart from the circumstance that they related to plots of land which were not parcels of T.S. No. 1123, the evidence quite clearly shows that those plots of land were in the possession of squatters. The High Court thought that because the sales were voluntary sales the price which was paid under Exs. B-1 to B-10 was a fair price. That is not true. That is to ignore the circumstance noticed by the learned Subordinate Judge that lands in the occupation of squatters will not fetch a fair price unless the lands are cleared of squatters.4. In regard to the transactions B-13, B-14 and B-16, the High Court referred to the evidence of PW 1 to the effect that the lands covered by them were very near a public latrine but observed that there was no other evidence apart from the evidence of that witness. The High Court gave no reason for rejecting the testimony of PW 1.5. We may also mention here that the High Court stated repeatedly that no objection was taken by the claimants to Exs. B-1 to B-10, B-13, B-14 and B-16 before the Land Acquisition Officer. We are unable to understand what the High Court precisely meant by this statement. If the High Court meant that the claimant should have opposed the consideration of these documents by the Land Acquisition Officer a clear answer is that they did not have the opportunity of doing so since the Land Acquisition Officer did not inform them in advance on which document he proposed to rely for making his award. In any case, whether objection was raised or not before the Land Acquisition Officer, it was open to the claimants to adduce evidence before the Court in order to point out that the Land Acquisition Officer ought not have relied upon the transactions on which he relied and that he should have been guided by some other transactions. We notice that the conclusion of the High Court was considerably coloured by the statement repeatedly made that the claimants did not object to these documents before the Land Acquisition Officer.6. We are satisfied that the High Court should not have interfered with the award of compensation made by the learned Subordinate Judge for the acquired land at the rate of Rs. 11 per sq. yard.
### Response:
1
### Explanation:
5. We may also mention here that the High Court stated repeatedly that no objection was taken by the claimants to Exs.4 andbefore the Land Acquisition Officer. We are unable to understand what the High Court precisely meant by this statement. If the High Court meant that the claimant should have opposed the consideration of these documents by the Land Acquisition Officer a clear answer is that they did not have the opportunity of doing so since the Land Acquisition Officer did not inform them in advance on which document he proposed to rely for making his award. In any case, whether objection was raised or not before the Land Acquisition Officer, it was open to the claimants to adduce evidence before the Court in order to point out that the Land Acquisition Officer ought not have relied upon the transactions on which he relied and that he should have been guided by some other transactions. We notice that the conclusion of the High Court was considerably coloured by the statement repeatedly made that the claimants did not object to these documents before the Land Acquisition Officer.6. We are satisfied that the High Court should not have interfered with the award of compensation made by the learned Subordinate Judge for the acquired land at the rate of Rs. 11 per sq. yard.
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Rattan Singh Etc. Etc Vs. State Of Punjab & Ors. Etc. Etc | CHANDRACHUD, C.J.1. By this petition under Article 32 of the Constitution the petitioner challenges the validity of an order dated March 27, 1981 passed by respondent 1, the State of Punjab, under section 3(1) of the Conservation of Foreign enchange and Prevention of Smuggling Activities Act, 1974.2. On April 19, 1981, while the petitioner was in detention, his advocate, Shri Harjinder Singh, wrote a letter to the Superintendent of Central Jail, Amritsar, enclosing therewith two representations drafted on behalf of the petitioner, one of which was addressed to D the Joint Secretary, Department of Home, Government of Punjab, Chandigarh, and the other to the Secretary, Union Ministry of Finance, Department of Revenue, New Delhi. The Jail Superintendent was requested by the aforesaid letter that the representations be forwarded to the State Government and the Central Government after obtaining the signatures of the detenu thereon. The contention of the petitioner is that in spite of the long passage of time, the representation to the Central Government has not so far been considered by it, rendering his detention illegal.3. In his counter-affidavit dated July 29, 1981, the Under Secretary to the Government of India, Ministry of Finance (Department of Revenue), COFEPOSA Unit, New Delhi says that "no representation by or on behalf of the detenu relating to his detention has been received by the Central Government. As such, the question of any delay in the disposal of such a representation does not arise". In his affidavit dated July 21, 198 1 the P.P.S. (1), Superintendent, Central Jail, Amritsar says that the representation of the detenu Rattan Singh was forwarded to the Punjab Government. The affidavit of Smt. Shyama Mann, Joint Secretary to Government, Punjab, Home Department, Ch andigarh shows that the representation of the detenu was considered by the Government of Punjab and was rejected on April 28, 1981.There is no difficulty in so far as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have for warded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right o defend and assert his fundamental right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase !) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power , in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The coutinued detention of the detenu must therefore be held illegal and the detenu set free.In Tata Chand v. State of Rajasthan(1), it was held by this Court that even an inordinate delay on the part of the Central Government in consideration of the representation of a detenu would be in violation of Article 22(5) of the Constitution, thereby rendering the detention unconstitutional In Shyam Anbalal Siroya v. Union of India(2) this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In our case, the representation to the Central Government was not forwarded to it at all.These then are our reasons for the order dated October 1, 198 1 whereby we directed that the detenu be released,4. Writ Petition No. 3647 of 1981.For the reasons given above in Writ Petition No. 3614 of 1981, this Petition must also succeed and the detenu set at liberty as directed in our order dated October 1. It was on July 2, 1981 that the detenu made a representation to the Central Government through the Superintendent of Jail, Amritsar, and it is not denied that the representation has still not been considered by that Government. The counter- affidavit of the Under Secretary to the Government of India shows that the representation made by the detenu was not forwarded at all to the Central Government which explains the statement in the affidavit that no representation was received by the Central Government and that therefore the question of delay in consideration of the representation did not arise.5 | 1[ds]There is no difficulty in so far as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have for warded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right o defend and assert his fundamental right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase !) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democraticit is essential that at least those safeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power , in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The coutinued detention of the detenu must therefore be held illegal and the detenu set free.In Tata Chand v. State of Rajasthan(1), it was held by this Court that even an inordinate delay on the part of the Central Government in consideration of the representation of a detenu would be in violation of Article 22(5) of the Constitution, thereby rendering the detention unconstitutional In Shyam Anbalal Siroya v. Union of India(2) this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In our case, the representation to the Central Government was not forwarded to it at all.These then are our reasons for the order dated October 1, 198 1 whereby we directed that the detenu be released,4. Writ Petition No. 3647 of 1981.For the reasons given above in Writ Petition No. 3614 of 1981, this Petition must also succeed and the detenu set at liberty as directed in our order dated October 1. It was on July 2, 1981 that the detenu made a representation to the Central Government through the Superintendent of Jail, Amritsar, and it is not denied that the representation has still not been considered by thatit of the Under Secretary to the Government of India shows that the representation made by the detenu was not forwarded at all to the Central Government which explains the statement in the affidavit that no representation was received by the Central Government and that therefore the question of delay in consideration of the representation did not arise. | 1 | 1,055 | 690 | ### Instruction:
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CHANDRACHUD, C.J.1. By this petition under Article 32 of the Constitution the petitioner challenges the validity of an order dated March 27, 1981 passed by respondent 1, the State of Punjab, under section 3(1) of the Conservation of Foreign enchange and Prevention of Smuggling Activities Act, 1974.2. On April 19, 1981, while the petitioner was in detention, his advocate, Shri Harjinder Singh, wrote a letter to the Superintendent of Central Jail, Amritsar, enclosing therewith two representations drafted on behalf of the petitioner, one of which was addressed to D the Joint Secretary, Department of Home, Government of Punjab, Chandigarh, and the other to the Secretary, Union Ministry of Finance, Department of Revenue, New Delhi. The Jail Superintendent was requested by the aforesaid letter that the representations be forwarded to the State Government and the Central Government after obtaining the signatures of the detenu thereon. The contention of the petitioner is that in spite of the long passage of time, the representation to the Central Government has not so far been considered by it, rendering his detention illegal.3. In his counter-affidavit dated July 29, 1981, the Under Secretary to the Government of India, Ministry of Finance (Department of Revenue), COFEPOSA Unit, New Delhi says that "no representation by or on behalf of the detenu relating to his detention has been received by the Central Government. As such, the question of any delay in the disposal of such a representation does not arise". In his affidavit dated July 21, 198 1 the P.P.S. (1), Superintendent, Central Jail, Amritsar says that the representation of the detenu Rattan Singh was forwarded to the Punjab Government. The affidavit of Smt. Shyama Mann, Joint Secretary to Government, Punjab, Home Department, Ch andigarh shows that the representation of the detenu was considered by the Government of Punjab and was rejected on April 28, 1981.There is no difficulty in so far as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have for warded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right o defend and assert his fundamental right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase !) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power , in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The coutinued detention of the detenu must therefore be held illegal and the detenu set free.In Tata Chand v. State of Rajasthan(1), it was held by this Court that even an inordinate delay on the part of the Central Government in consideration of the representation of a detenu would be in violation of Article 22(5) of the Constitution, thereby rendering the detention unconstitutional In Shyam Anbalal Siroya v. Union of India(2) this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In our case, the representation to the Central Government was not forwarded to it at all.These then are our reasons for the order dated October 1, 198 1 whereby we directed that the detenu be released,4. Writ Petition No. 3647 of 1981.For the reasons given above in Writ Petition No. 3614 of 1981, this Petition must also succeed and the detenu set at liberty as directed in our order dated October 1. It was on July 2, 1981 that the detenu made a representation to the Central Government through the Superintendent of Jail, Amritsar, and it is not denied that the representation has still not been considered by that Government. The counter- affidavit of the Under Secretary to the Government of India shows that the representation made by the detenu was not forwarded at all to the Central Government which explains the statement in the affidavit that no representation was received by the Central Government and that therefore the question of delay in consideration of the representation did not arise.5
### Response:
1
### Explanation:
There is no difficulty in so far as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have for warded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right o defend and assert his fundamental right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase !) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democraticit is essential that at least those safeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power , in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The coutinued detention of the detenu must therefore be held illegal and the detenu set free.In Tata Chand v. State of Rajasthan(1), it was held by this Court that even an inordinate delay on the part of the Central Government in consideration of the representation of a detenu would be in violation of Article 22(5) of the Constitution, thereby rendering the detention unconstitutional In Shyam Anbalal Siroya v. Union of India(2) this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In our case, the representation to the Central Government was not forwarded to it at all.These then are our reasons for the order dated October 1, 198 1 whereby we directed that the detenu be released,4. Writ Petition No. 3647 of 1981.For the reasons given above in Writ Petition No. 3614 of 1981, this Petition must also succeed and the detenu set at liberty as directed in our order dated October 1. It was on July 2, 1981 that the detenu made a representation to the Central Government through the Superintendent of Jail, Amritsar, and it is not denied that the representation has still not been considered by thatit of the Under Secretary to the Government of India shows that the representation made by the detenu was not forwarded at all to the Central Government which explains the statement in the affidavit that no representation was received by the Central Government and that therefore the question of delay in consideration of the representation did not arise.
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Kali Ram Dokania & Others Vs. S.K. Ulfat Hossain | 1937-38 and 1938-39 and found that the estate was not in arrear at the end of December 1938 and that the Subordinate Judges calculation was based on a "complete misunderstanding" of the extracts from the Tauzi ledgers. "The whole confusion," they observed."has arisen by the two dates of the kistbandi not having been kept distinct from the dates fixed for the arrears of those instalments."Inasmuch as the Tauzi ledger for the year 1938-39 (Ex. G.-2) shows that the estate was in credit in the sum of Rs. 3-7-6 at the end of January 1939 and the next instalment to fall due according to the kistbandi would be the April instalment, the earliest date on which the estate would be in arrear for the non-payment of that instalment would be 1-5-1939 and the latest date for its payment as fixed by the Revenue Board under S. 3 of the Act could not be earlier than 12-1-1940. Hence the learned Judges concluded that the sale of 5-6-1939 was "wholly without jurisdiction.8. Mr. Umrigar on behalf of the appellants assailed this reasoning and conclusion but has not been able to convince us that the decision of the High Court is vitiated by any error of principle or of arithmetic. Learned counsel seemed to realise that, if the kistbandi of 1868 was still in force and bound the Government as well is the proprietors, the finding of the High Court must be correct. His whole attempt was to make out that the kistbandi of 1868 fell into desuetude, both the proprietors and the revenue authorities having proceeded on the footing that, whatever may be the dates when the instalments fell due according to the kistbandi, the dates fixed by the Board of Revenue under S. 3 were the crucial dates and the demands shown in the Tauzi ledgers under each "kist period were only sums which had already become arrears as defined in S. 2 of the Act. Accordingly it was said the sum of Rs. 6 entered as the demand in the "fourth kist" in Ex. G.2 was an arrear, the latest day for paying which was 28-3-1939. After adjusting the previous credit balance of Rs. 3-7-6, a sum of Rs. 2-8-6. was, it was claimed, correctly shown as an arrear for the non-payment of which the estate was liable to be sold. Reliance was placed in support of this argument on certain observations in Radha Gobinda v. Girija Prasanna, A. I.R. (l9)1932 Ca1. 153 (59 Ca1 186)Jadunandan Singh v. Savitri Devi,12 Pat. 750 : (A.I.R. (20) 1933 Pat. 236 S. B.) and Shama Kant v. Kashi Nath,A. I. R. (13) 1926 Pat. 549 : (96 I. C. 807). Reference was also made to the definition of "demand in the Tauzi Manual as meaning."sums due from proprietors, farmers or ryots for the recovery of which legal steps can at once be taken on the day immediately following the latest day of payment."10. These citations, however, are not of much assistance to the appellants. In the cases referred to above no kistbandi was forthcoming and the decisions turn on the particular facts with which they had to deal. We do not read the observations made therein as suggesting that even in cases where a kistbandi or a kabuliyat regulating the payment of Government revenue is shown to have been executed by the proprietors and accepted by the revenue authorities it should be deemed not to be in force.11. On the other handHaji Buksh Elahi v. Durlav Chandra Kar,39 Cal. 981: (39 I. A. 377 P. C.) is a clear authority for the view that"no variation of the contract of parties and the statutory provisions applicable thereto is possible by reason of general considerations or administrative rules which have not the sanction of Indian statute."12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear before 28-3-1939 based, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enact that:"no such sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear before 28-3-1939, could not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books." | 0[ds]12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear beforebased, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enactsuch sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear beforecould not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books." | 0 | 2,788 | 406 | ### 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:
1937-38 and 1938-39 and found that the estate was not in arrear at the end of December 1938 and that the Subordinate Judges calculation was based on a "complete misunderstanding" of the extracts from the Tauzi ledgers. "The whole confusion," they observed."has arisen by the two dates of the kistbandi not having been kept distinct from the dates fixed for the arrears of those instalments."Inasmuch as the Tauzi ledger for the year 1938-39 (Ex. G.-2) shows that the estate was in credit in the sum of Rs. 3-7-6 at the end of January 1939 and the next instalment to fall due according to the kistbandi would be the April instalment, the earliest date on which the estate would be in arrear for the non-payment of that instalment would be 1-5-1939 and the latest date for its payment as fixed by the Revenue Board under S. 3 of the Act could not be earlier than 12-1-1940. Hence the learned Judges concluded that the sale of 5-6-1939 was "wholly without jurisdiction.8. Mr. Umrigar on behalf of the appellants assailed this reasoning and conclusion but has not been able to convince us that the decision of the High Court is vitiated by any error of principle or of arithmetic. Learned counsel seemed to realise that, if the kistbandi of 1868 was still in force and bound the Government as well is the proprietors, the finding of the High Court must be correct. His whole attempt was to make out that the kistbandi of 1868 fell into desuetude, both the proprietors and the revenue authorities having proceeded on the footing that, whatever may be the dates when the instalments fell due according to the kistbandi, the dates fixed by the Board of Revenue under S. 3 were the crucial dates and the demands shown in the Tauzi ledgers under each "kist period were only sums which had already become arrears as defined in S. 2 of the Act. Accordingly it was said the sum of Rs. 6 entered as the demand in the "fourth kist" in Ex. G.2 was an arrear, the latest day for paying which was 28-3-1939. After adjusting the previous credit balance of Rs. 3-7-6, a sum of Rs. 2-8-6. was, it was claimed, correctly shown as an arrear for the non-payment of which the estate was liable to be sold. Reliance was placed in support of this argument on certain observations in Radha Gobinda v. Girija Prasanna, A. I.R. (l9)1932 Ca1. 153 (59 Ca1 186)Jadunandan Singh v. Savitri Devi,12 Pat. 750 : (A.I.R. (20) 1933 Pat. 236 S. B.) and Shama Kant v. Kashi Nath,A. I. R. (13) 1926 Pat. 549 : (96 I. C. 807). Reference was also made to the definition of "demand in the Tauzi Manual as meaning."sums due from proprietors, farmers or ryots for the recovery of which legal steps can at once be taken on the day immediately following the latest day of payment."10. These citations, however, are not of much assistance to the appellants. In the cases referred to above no kistbandi was forthcoming and the decisions turn on the particular facts with which they had to deal. We do not read the observations made therein as suggesting that even in cases where a kistbandi or a kabuliyat regulating the payment of Government revenue is shown to have been executed by the proprietors and accepted by the revenue authorities it should be deemed not to be in force.11. On the other handHaji Buksh Elahi v. Durlav Chandra Kar,39 Cal. 981: (39 I. A. 377 P. C.) is a clear authority for the view that"no variation of the contract of parties and the statutory provisions applicable thereto is possible by reason of general considerations or administrative rules which have not the sanction of Indian statute."12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear before 28-3-1939 based, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enact that:"no such sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear before 28-3-1939, could not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books."
### Response:
0
### Explanation:
12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear beforebased, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enactsuch sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear beforecould not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books."
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Sk. Jainal Vs. District Magistrate, West Dinajpur & Others | Untwalia, J.1. In this petition under Article 32 of the Constitution of India the petitioner has prayed for a writ of habeas corpus for directing his release from the allegedly unlawful custody in jail. The facts of this case are identical to those of Writ Petition No. 332 of 1974, the judgment of which has been delivered today. The dates of the order of detention and the arrest of the detenus and the grounds served in both the cases are identical. Each of them along with his associates is said to have been carrying 11 bundles of telegraph copper wires weighing 300 kgs. in bullock cart on May 13, 1972. The reasons of detention of the petitioner in this case are the same as in the other case. It is plain that this writ petition has also to fail in view of the judgment in the other case.2. But there is one special point which was urged by Mr. Pramod Swarup, learned for the petitioner who assisted the Court as amicus curiae. Counsel submitted that in the first information report the petitioner was not named as an accused when a regular case was instituted. Allegations made against him in the grounds of detention are therefore baseless and false. Mr. Swarup endeavoured to press into service some observations of this Court in Paragraph 4 of the judgment in the case of Arun Kumar Sinha v. State of W. B. (AIR 1972 SC 2371 : (1973) 4 SCC 54 : 1973 SCC (Cri) 695 ). In the said paragraph it was pointed out in answer to a similar point as to the absence of the name of the detenu from the first information report that this ground was not taken by the petitioner in the petition with the result that the respondent had no opportunity or occasion to deal with it. Counsel submitted that in the instant case the point was taken and therefore it must succeed. We have no difficulty in rejecting this argument as devoid of substance. In the petition filed from jail there was no such point taken. But the whole of the argument seems to have been built up on the basis of the statement in the counter-affidavit filed on behalf of the respondents. In paragraph 5 of the counter-affidavit it is said :It appears from the report submitted by the I.C. of the case, that although the names of the petitioner did not appear in F.I.R. his complicity in the incident transpired in course of investigation. It further appears that in connection with said incident a specific case was started being Islampur P.S. Case No. 19 dated May 16, 1972 under Section 5 of the Telegraph Copper Wire (Unlawful Possession) Act 1950 in the Court of S.O.D.M. Islampur. After some investigation and enquiry the said case ended in F.R.T. on June 21, 1972 as the witnesses were afraid to depose against the petitioner in open court. Thereafter the petitioner was discharged from the said case and detained under the said order passed by the said District Magistrate on June 22, 1972.3. In view of the statement made in the counter-affidavit which has been extracted above, it is manifest that mere absence of the petitioners name in the first information report cannot justify the inference that the ground of his detention is non est. In a case of this kind, investigation as to the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked. And exercising the peripheral jurisdiction in matters of preventive detention this Court is unable to accept the contention put forward on behalf of the petitioner. | 0[ds]In the said paragraph it was pointed out in answer to a similar point as to the absence of the name of the detenu from the first information report that this ground was not taken by the petitioner in the petition with the result that the respondent had no opportunity or occasion to deal with it. Counsel submitted that in the instant case the point was taken and therefore it must succeed. We have no difficulty in rejecting this argument as devoid of substance. In the petition filed from jail there was no such point taken. But the whole of the argument seems to have been built up on the basis of the statement in thefiled on behalf of the respondents. In paragraph 5 of theit is said :It appears from the report submitted by the I.C. of the case, that although the names of the petitioner did not appear in F.I.R. his complicity in the incident transpired in course of investigation. It further appears that in connection with said incident a specific case was started being Islampur P.S. Case No. 19 dated May 16, 1972 under Section 5 of the Telegraph Copper Wire (Unlawful Possession) Act 1950 in the Court of S.O.D.M. Islampur. After some investigation and enquiry the said case ended in F.R.T. on June 21, 1972 as the witnesses were afraid to depose against the petitioner in open court. Thereafter the petitioner was discharged from the said case and detained under the said order passed by the said District Magistrate on June 22, 1972.3. In view of the statement made in thewhich has been extracted above, it is manifest that mere absence of the petitioners name in the first information report cannot justify the inference that the ground of his detention is non est. In a case of this kind, investigation as to the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked. And exercising the peripheral jurisdiction in matters of preventive detention this Court is unable to accept the contention put forward on behalf of the petitioner. | 0 | 658 | 380 | ### 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:
Untwalia, J.1. In this petition under Article 32 of the Constitution of India the petitioner has prayed for a writ of habeas corpus for directing his release from the allegedly unlawful custody in jail. The facts of this case are identical to those of Writ Petition No. 332 of 1974, the judgment of which has been delivered today. The dates of the order of detention and the arrest of the detenus and the grounds served in both the cases are identical. Each of them along with his associates is said to have been carrying 11 bundles of telegraph copper wires weighing 300 kgs. in bullock cart on May 13, 1972. The reasons of detention of the petitioner in this case are the same as in the other case. It is plain that this writ petition has also to fail in view of the judgment in the other case.2. But there is one special point which was urged by Mr. Pramod Swarup, learned for the petitioner who assisted the Court as amicus curiae. Counsel submitted that in the first information report the petitioner was not named as an accused when a regular case was instituted. Allegations made against him in the grounds of detention are therefore baseless and false. Mr. Swarup endeavoured to press into service some observations of this Court in Paragraph 4 of the judgment in the case of Arun Kumar Sinha v. State of W. B. (AIR 1972 SC 2371 : (1973) 4 SCC 54 : 1973 SCC (Cri) 695 ). In the said paragraph it was pointed out in answer to a similar point as to the absence of the name of the detenu from the first information report that this ground was not taken by the petitioner in the petition with the result that the respondent had no opportunity or occasion to deal with it. Counsel submitted that in the instant case the point was taken and therefore it must succeed. We have no difficulty in rejecting this argument as devoid of substance. In the petition filed from jail there was no such point taken. But the whole of the argument seems to have been built up on the basis of the statement in the counter-affidavit filed on behalf of the respondents. In paragraph 5 of the counter-affidavit it is said :It appears from the report submitted by the I.C. of the case, that although the names of the petitioner did not appear in F.I.R. his complicity in the incident transpired in course of investigation. It further appears that in connection with said incident a specific case was started being Islampur P.S. Case No. 19 dated May 16, 1972 under Section 5 of the Telegraph Copper Wire (Unlawful Possession) Act 1950 in the Court of S.O.D.M. Islampur. After some investigation and enquiry the said case ended in F.R.T. on June 21, 1972 as the witnesses were afraid to depose against the petitioner in open court. Thereafter the petitioner was discharged from the said case and detained under the said order passed by the said District Magistrate on June 22, 1972.3. In view of the statement made in the counter-affidavit which has been extracted above, it is manifest that mere absence of the petitioners name in the first information report cannot justify the inference that the ground of his detention is non est. In a case of this kind, investigation as to the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked. And exercising the peripheral jurisdiction in matters of preventive detention this Court is unable to accept the contention put forward on behalf of the petitioner.
### Response:
0
### Explanation:
In the said paragraph it was pointed out in answer to a similar point as to the absence of the name of the detenu from the first information report that this ground was not taken by the petitioner in the petition with the result that the respondent had no opportunity or occasion to deal with it. Counsel submitted that in the instant case the point was taken and therefore it must succeed. We have no difficulty in rejecting this argument as devoid of substance. In the petition filed from jail there was no such point taken. But the whole of the argument seems to have been built up on the basis of the statement in thefiled on behalf of the respondents. In paragraph 5 of theit is said :It appears from the report submitted by the I.C. of the case, that although the names of the petitioner did not appear in F.I.R. his complicity in the incident transpired in course of investigation. It further appears that in connection with said incident a specific case was started being Islampur P.S. Case No. 19 dated May 16, 1972 under Section 5 of the Telegraph Copper Wire (Unlawful Possession) Act 1950 in the Court of S.O.D.M. Islampur. After some investigation and enquiry the said case ended in F.R.T. on June 21, 1972 as the witnesses were afraid to depose against the petitioner in open court. Thereafter the petitioner was discharged from the said case and detained under the said order passed by the said District Magistrate on June 22, 1972.3. In view of the statement made in thewhich has been extracted above, it is manifest that mere absence of the petitioners name in the first information report cannot justify the inference that the ground of his detention is non est. In a case of this kind, investigation as to the truthfulness of the facts forming the basis of the grounds of detention cannot be embarked. And exercising the peripheral jurisdiction in matters of preventive detention this Court is unable to accept the contention put forward on behalf of the petitioner.
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M/S. Popcorn Entertainment Vs. City Indl. Dev. Corpn. | special leave petition and its accompaniments and list of dates which are inconsistent with and contrary to what is stated hereinabove and as if the same has been expressly traversed and denied. He would, therefore, submit that the appeal is devoid of merits and hence deserves to be dismissed at the threshold in the interest of justice and prayed accordingly. It was further submitted that in case this Court were to remit the matter back to the High Court for fresh disposal, the same writ petition be restored to its original No. along with the pleadings which were already complete with a direction to the High Court to decide the same in a time-bound manner preferably within a short period. We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court. It is also pertinent to notice when the allotment was made in favour of the appellant there was no entertainment facility available in the area and CIDCO in its endeavour to do proper planned development of the area was obliged to provide for entertainment for the residents. CIDCO in fact had put an advertisement for tender for various other plots for the said purpose and upon getting no response to the advertisement, CIDCO approved the allotment in favour of the appellant on first come first serve basis. It is not the case of CIDCO or by any other private party that any other application was made prior in time to the application made by the appellants for the same plot and hence the allotment in favour of the appellant cannot be faulted in any manner. It has been held by several decisions of this Court that while developing a new township the objective of the planning authorities is not to earn money but to provide for systematic and all-round development of the area so that the purpose of setting up the township is achieved by more and more people wanting to live in the area in view of the various amenities being provided in the area. Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants.15. It is also pertinent to mention that CIDCO in the show cause notice has taken the ground of non-issuance of tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to the non-issuance of tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions. Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of the rival claim. Since elaborate arguments were advanced by learned senior counsel for the appellant and countered by learned senior counsel for the respondent, we extracted the entire argument in extenso in order to enable the High Court to consider all the above submissions made by both the parties on merits and dispose of the same within a period of 6 weeks from the date of receipt of this judgment. As already noticed the request for allotment of construction of multiplex was made on 18.05.2004 and the allotment was made by the Boards Resolution dated 03.06.2004. It is also a matter of record that both the appellants in the civil appeals have deposited several crores of rupees as and when directed by respondent No.1. It is also pertinent to notice that commencement certificate to the appellants permitting them to start the construction was also made on 28.02.2005. However, the show cause notice was issued in July, 2005 and the allotment was cancelled subsequently which was challenged in the writ petition in the year 2006. Since the matter is pending for a very long time before the High Court and also of this Court, we feel just and proper to request the High Court to restore both the writ petitions No. 9467/2005 and 9468/2005 to its original No. along with the pleadings which were already complete and request the High Court to decide the same in a time bound manner preferably and on priority basis within 6 weeks from the date of receipt of this judgment. | 1[ds]In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court. It is also pertinent to notice when the allotment was made in favour of the appellant there was no entertainment facility available in the area and CIDCO in its endeavour to do proper planned development of the area was obliged to provide for entertainment for the residents. CIDCO in fact had put an advertisement for tender for various other plots for the said purpose and upon getting no response to the advertisement, CIDCO approved the allotment in favour of the appellant on first come first serve basis. It is not the case of CIDCO or by any other private party that any other application was made prior in time to the application made by the appellants for the same plot and hence the allotment in favour of the appellant cannot be faulted in any manner. It has been held by several decisions of this Court that while developing a new township the objective of the planning authorities is not to earn money but to provide for systematic anddevelopment of the area so that the purpose of setting up the township is achieved by more and more people wanting to live in the area in view of the various amenities being provided in the area. Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants.15. It is also pertinent to mention that CIDCO in the show cause notice has taken the ground ofof tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to theof tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions. Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of the rival claim. Since elaborate arguments were advanced by learned senior counsel for the appellant and countered by learned senior counsel for the respondent, we extracted the entire argument in extenso in order to enable the High Court to consider all the above submissions made by both the parties on merits and dispose of the same within a period of 6 weeks from the date of receipt of this judgment. As already noticed the request for allotment of construction of multiplex was made on 18.05.2004 and the allotment was made by the Boards Resolution dated 03.06.2004. It is also a matter of record that both the appellants in the civil appeals have deposited several crores of rupees as and when directed by respondent No.1. It is also pertinent to notice that commencement certificate to the appellants permitting them to start the construction was also made on 28.02.2005. However, the show cause notice was issued in July, 2005 and the allotment was cancelled subsequently which was challenged in the writ petition in the year 2006. Since the matter is pending for a very long time before the High Court and also of this Court, we feel just and proper to request the High Court to restore both the writ petitions No. 9467/2005 and 9468/2005 to its original No. along with the pleadings which were already complete and request the High Court to decide the same in a time bound manner preferably and on priority basis within 6 weeks from the date of receipt of this judgment. | 1 | 7,124 | 905 | ### 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:
special leave petition and its accompaniments and list of dates which are inconsistent with and contrary to what is stated hereinabove and as if the same has been expressly traversed and denied. He would, therefore, submit that the appeal is devoid of merits and hence deserves to be dismissed at the threshold in the interest of justice and prayed accordingly. It was further submitted that in case this Court were to remit the matter back to the High Court for fresh disposal, the same writ petition be restored to its original No. along with the pleadings which were already complete with a direction to the High Court to decide the same in a time-bound manner preferably within a short period. We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court. It is also pertinent to notice when the allotment was made in favour of the appellant there was no entertainment facility available in the area and CIDCO in its endeavour to do proper planned development of the area was obliged to provide for entertainment for the residents. CIDCO in fact had put an advertisement for tender for various other plots for the said purpose and upon getting no response to the advertisement, CIDCO approved the allotment in favour of the appellant on first come first serve basis. It is not the case of CIDCO or by any other private party that any other application was made prior in time to the application made by the appellants for the same plot and hence the allotment in favour of the appellant cannot be faulted in any manner. It has been held by several decisions of this Court that while developing a new township the objective of the planning authorities is not to earn money but to provide for systematic and all-round development of the area so that the purpose of setting up the township is achieved by more and more people wanting to live in the area in view of the various amenities being provided in the area. Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants.15. It is also pertinent to mention that CIDCO in the show cause notice has taken the ground of non-issuance of tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to the non-issuance of tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions. Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of the rival claim. Since elaborate arguments were advanced by learned senior counsel for the appellant and countered by learned senior counsel for the respondent, we extracted the entire argument in extenso in order to enable the High Court to consider all the above submissions made by both the parties on merits and dispose of the same within a period of 6 weeks from the date of receipt of this judgment. As already noticed the request for allotment of construction of multiplex was made on 18.05.2004 and the allotment was made by the Boards Resolution dated 03.06.2004. It is also a matter of record that both the appellants in the civil appeals have deposited several crores of rupees as and when directed by respondent No.1. It is also pertinent to notice that commencement certificate to the appellants permitting them to start the construction was also made on 28.02.2005. However, the show cause notice was issued in July, 2005 and the allotment was cancelled subsequently which was challenged in the writ petition in the year 2006. Since the matter is pending for a very long time before the High Court and also of this Court, we feel just and proper to request the High Court to restore both the writ petitions No. 9467/2005 and 9468/2005 to its original No. along with the pleadings which were already complete and request the High Court to decide the same in a time bound manner preferably and on priority basis within 6 weeks from the date of receipt of this judgment.
### Response:
1
### Explanation:
In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court. It is also pertinent to notice when the allotment was made in favour of the appellant there was no entertainment facility available in the area and CIDCO in its endeavour to do proper planned development of the area was obliged to provide for entertainment for the residents. CIDCO in fact had put an advertisement for tender for various other plots for the said purpose and upon getting no response to the advertisement, CIDCO approved the allotment in favour of the appellant on first come first serve basis. It is not the case of CIDCO or by any other private party that any other application was made prior in time to the application made by the appellants for the same plot and hence the allotment in favour of the appellant cannot be faulted in any manner. It has been held by several decisions of this Court that while developing a new township the objective of the planning authorities is not to earn money but to provide for systematic anddevelopment of the area so that the purpose of setting up the township is achieved by more and more people wanting to live in the area in view of the various amenities being provided in the area. Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants.15. It is also pertinent to mention that CIDCO in the show cause notice has taken the ground ofof tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to theof tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions. Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of the rival claim. Since elaborate arguments were advanced by learned senior counsel for the appellant and countered by learned senior counsel for the respondent, we extracted the entire argument in extenso in order to enable the High Court to consider all the above submissions made by both the parties on merits and dispose of the same within a period of 6 weeks from the date of receipt of this judgment. As already noticed the request for allotment of construction of multiplex was made on 18.05.2004 and the allotment was made by the Boards Resolution dated 03.06.2004. It is also a matter of record that both the appellants in the civil appeals have deposited several crores of rupees as and when directed by respondent No.1. It is also pertinent to notice that commencement certificate to the appellants permitting them to start the construction was also made on 28.02.2005. However, the show cause notice was issued in July, 2005 and the allotment was cancelled subsequently which was challenged in the writ petition in the year 2006. Since the matter is pending for a very long time before the High Court and also of this Court, we feel just and proper to request the High Court to restore both the writ petitions No. 9467/2005 and 9468/2005 to its original No. along with the pleadings which were already complete and request the High Court to decide the same in a time bound manner preferably and on priority basis within 6 weeks from the date of receipt of this judgment.
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