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Sappani Mohamed Mohideen & Anr Vs. R. V. Sethusubramania Pillai & Ors
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long usage as to the application of trust funds, the court will not where there is no ambiguity, accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust".12. Our attention was drawn to a decision of the House of Lords in The Attorney-General v. The Master, Wardens, etc., of the Wax Chandlers Co. (1873) LR 6 HL 1 (at p. 19) wherein it was held:"There is one well-known class of authorities of this sort. A testator devises to a corporate body or to an individual, landed property, and he affixes to that devise a condition that the corporation or the individual shall at their or his own peril, and if necessary out of their own funds, make certain payments, or a certain payment, to some object of his bounty. In a case of that kind the devisee is said to take the land upon condition. If the devise is accepted, the condition must be fulfilled, and the money must be paid, whether the land devised is, or is not, adequate to make the payment. The very statement of a case of that kind implies that the land is the land of the devisee, and that every accretion to the value of the land belongs to the devisee; and that the person or the charity which has the benefit of the condition, which receives the payment mentioned in the condition, has a right to nothing more than that payment"This case meets the requirements of the present case before us. To the same effect there is a passage in Halsburys Laws of England, third edition, volume 4, at page 306:"Speaking generally, the increase will belong to the donee, first, if the gift be to the donee subject to certain payments to others; secondly, if the gift be upon condition of making certain payments subject to a forfeiture upon non-performance of the condition; or, thirdly, if the donee might be a loser by the insufficiency of the fund, (1846) 12 Cl. and Fin 812 H.L. 828 per Lord Cottenham".The case referred to in Halsbury is Jack v. Burnett (1846) 12 Cl. and Fin 812 = 8 ER 1632 wherefrom the following passage is apposite:"In searching for the intention of a donor which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain payments to others, - secondly, that forfeiture will be incurred by non-performance of that condition, - and, thirdly, that the donee may be subjected to loss by the performance of that condition, are sufficient to raise the presumption that in case of the increase of the fund, the donor intended to give to the donee the benefit of that increase".It was held by the House of Lords in that case "that this was a grant upon condition, and not a mere trust, and that the Principal and Professors were entitled, after satisfying the conditions of the deed of gift, to appropriate to themselves any surplus arising from the land thus given."13. Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
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1[ds].There is no reference in clause 9 that this land shall be "allotted for charity" whereas those words clearly appear in clause 8 of the deed. In the entire scheme of the deed there must be a legitimate justification for not allotting the lands mentioned in the ninth schedule for charity. Besides, it is clear on the findings of the courts below that the value of the property in 1882 was inconsiderable and the income out of it was not sufficient to meet the expenses for the charities.A device had, therefore, to be made to keep alive the sacred memory of their parents who were keen to continue these charities out of the ancestral property. Having divided the properties in the manner done in the partition deed, each of the brothers contributed according to his capacity and by mutual adjustment a very substantial share of the expenses was to be borne by Kailasam Pillai and Venkatachalam Pillai, who were entrusted to perform the charities without fail. if necessary, which was even inevitable at the time, out of their own funds. Since it is a common ground that the charities have been performed for years, the burden of the liability must have fallen on Kailasam Pillai and thereafter on Venkatachalam Pillai. It is because of this feature in keeping alive the three charities mentioned in clause 9 that the lands in the ninth schedule were allotted to Kailasam Pillai and Venkatachalam Pillai so that they may get some recompense out of the income of the property if it may somehow or some day be forthcoming.The entire income from the property was little or nil and was not absolutely dedicated to the Temple for the charities. We have got to look at the matter from what the founders intended in the year 1882 and no construction can be given to the document which would frustrate the intention of the founders to keep alive the charities by appropriate performance.If these dry and then barren properties of the ninth schedule were absolutely dedicated to the Temple for performance of the three Kattalais the intention of the founders would have been defeated. It would have been nobodys business income being little or nil. We are therefore clearly of opinion that there is not ambiguity about any of the provisions of this deed which clearly go to show that there was no intendment to create an absolute endowment of the suit property to the Temple or the trust.9. The present value of the property and the present income therefrom will, in our view, not be relevant nor a safe aid to gather the intention of the parties in 1882. We are unable to agree with the High Court that "the wording" of the deed makes it clear beyond doubt that there is an absolute endowment of the property. We are also unable to hold, as the High Court has done, that "the family has divested itself of the ownership and Kailasam has been created trustee therefor". Ext. A-3 on which the High Court relied to reach its conclusion does not, in our opinion, make any departure from the nature of the transaction nor from the original intention of the parties, particularly in view of clause 19 thereof already quoted above. Similarly Ext. A-10 executed in 1936 on which the High Court relied does not unerringly point to any different intention even of the succeeding generation. The first extract quoted earlier from Ext. A-10 does not, in our opinion, relate to the ninth schedule property when the charity has been specifically endowed in the eighth schedule to Ext. A-1. Again the second extract from Ext. A-10, namely, clause 14 (1), earlier set out, does not, in our view, run counter to the original intention of their ancestors. The initial intention to be gathered from an ancient document when the provisions are reasonably clear cannot be readily altered to suit changing conditions over the years. Even so, if somehow it is possible to hold that the subsequent dealing with the property is consistent with the intention of the original parties to the document, as interpreted by us on the terms of the original deed, that course has to be preferred by the court.Besides, in interpreting ancient documents courts have to be cautious to guard against warping of the issue by reference to subsequent conduct of parties or their representatives which may vary for imponderable reasons, bona fide or otherwise.Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
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long usage as to the application of trust funds, the court will not where there is no ambiguity, accept an erroneous interpretation though consistent with usage, so as to sanction a manifest breach of trust".12. Our attention was drawn to a decision of the House of Lords in The Attorney-General v. The Master, Wardens, etc., of the Wax Chandlers Co. (1873) LR 6 HL 1 (at p. 19) wherein it was held:"There is one well-known class of authorities of this sort. A testator devises to a corporate body or to an individual, landed property, and he affixes to that devise a condition that the corporation or the individual shall at their or his own peril, and if necessary out of their own funds, make certain payments, or a certain payment, to some object of his bounty. In a case of that kind the devisee is said to take the land upon condition. If the devise is accepted, the condition must be fulfilled, and the money must be paid, whether the land devised is, or is not, adequate to make the payment. The very statement of a case of that kind implies that the land is the land of the devisee, and that every accretion to the value of the land belongs to the devisee; and that the person or the charity which has the benefit of the condition, which receives the payment mentioned in the condition, has a right to nothing more than that payment"This case meets the requirements of the present case before us. To the same effect there is a passage in Halsburys Laws of England, third edition, volume 4, at page 306:"Speaking generally, the increase will belong to the donee, first, if the gift be to the donee subject to certain payments to others; secondly, if the gift be upon condition of making certain payments subject to a forfeiture upon non-performance of the condition; or, thirdly, if the donee might be a loser by the insufficiency of the fund, (1846) 12 Cl. and Fin 812 H.L. 828 per Lord Cottenham".The case referred to in Halsbury is Jack v. Burnett (1846) 12 Cl. and Fin 812 = 8 ER 1632 wherefrom the following passage is apposite:"In searching for the intention of a donor which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain payments to others, - secondly, that forfeiture will be incurred by non-performance of that condition, - and, thirdly, that the donee may be subjected to loss by the performance of that condition, are sufficient to raise the presumption that in case of the increase of the fund, the donor intended to give to the donee the benefit of that increase".It was held by the House of Lords in that case "that this was a grant upon condition, and not a mere trust, and that the Principal and Professors were entitled, after satisfying the conditions of the deed of gift, to appropriate to themselves any surplus arising from the land thus given."13. Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
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the lands in the ninth schedule were allotted to Kailasam Pillai and Venkatachalam Pillai so that they may get some recompense out of the income of the property if it may somehow or some day be forthcoming.The entire income from the property was little or nil and was not absolutely dedicated to the Temple for the charities. We have got to look at the matter from what the founders intended in the year 1882 and no construction can be given to the document which would frustrate the intention of the founders to keep alive the charities by appropriate performance.If these dry and then barren properties of the ninth schedule were absolutely dedicated to the Temple for performance of the three Kattalais the intention of the founders would have been defeated. It would have been nobodys business income being little or nil. We are therefore clearly of opinion that there is not ambiguity about any of the provisions of this deed which clearly go to show that there was no intendment to create an absolute endowment of the suit property to the Temple or the trust.9. The present value of the property and the present income therefrom will, in our view, not be relevant nor a safe aid to gather the intention of the parties in 1882. We are unable to agree with the High Court that "the wording" of the deed makes it clear beyond doubt that there is an absolute endowment of the property. We are also unable to hold, as the High Court has done, that "the family has divested itself of the ownership and Kailasam has been created trustee therefor". Ext. A-3 on which the High Court relied to reach its conclusion does not, in our opinion, make any departure from the nature of the transaction nor from the original intention of the parties, particularly in view of clause 19 thereof already quoted above. Similarly Ext. A-10 executed in 1936 on which the High Court relied does not unerringly point to any different intention even of the succeeding generation. The first extract quoted earlier from Ext. A-10 does not, in our opinion, relate to the ninth schedule property when the charity has been specifically endowed in the eighth schedule to Ext. A-1. Again the second extract from Ext. A-10, namely, clause 14 (1), earlier set out, does not, in our view, run counter to the original intention of their ancestors. The initial intention to be gathered from an ancient document when the provisions are reasonably clear cannot be readily altered to suit changing conditions over the years. Even so, if somehow it is possible to hold that the subsequent dealing with the property is consistent with the intention of the original parties to the document, as interpreted by us on the terms of the original deed, that course has to be preferred by the court.Besides, in interpreting ancient documents courts have to be cautious to guard against warping of the issue by reference to subsequent conduct of parties or their representatives which may vary for imponderable reasons, bona fide or otherwise.Argument was addressed at the bar with regard to the surplus income from the suit property since with progress of time the value of the property has increased and necessarily its income. We are, however, of the view that for the reasons already discussed in this particular case we will not be required to examine the rule of surplus income in charities for the purpose of discovering the intention of the parties at the time of initial partition.14. The principles that emerge from the above decisions so far as appropriate to the case at hand may briefly be stated.Whether the endowment is absolute or partial, primarily depends on the terms of the grant. If there is an express endowment, there is no difficulty. If there is only an implied endowment, the intention has to be gathered on the construction of the document as a whole. If the words of the document are clear and unambiguous the question of interpretation would not arise. If there be ambiguity, the intention of the founders has to be carefully gathered from the scheme and language of the grant. Even surrounding circumstances, subsequent dealing with the property, the conduct of the parties to the document and long usage of the property and other relevant factors may have to be considered in an appropriate case. As pointed out earlier, we have a document in the instant case where there is an express endowment of certain specified properties as recited in clause 8 of the deed. Significantly, there is complete omission to create an absolute endowment of the property in the ninth schedule although the same is referred to in clause 9 of the deed and has been dealt with in a very special manner therein. There is absolutely no doubt on the terms of clause 9 read with the other material provisions of the deed that there is no absolute endowment of the suit property in favour of the temple or for the charities as claimed by the plaintiffs-respondents. We may, however, add that the conclusion we have reached from that intrinsic evidence of the document itself is reinforced by the subsequent conduct of the parties and the various transactions effected from time to time with regard to the suit properties.To boot, it is far from a case where the entire income of the property has been endowed to the trust to sustain a conclusion that the entire corpus belongs to the trust.15. Having regard to the principles set out above. it is clear that in the present case there was no absolute endowment of the suit property to the temple or the trust.The property, however, is impressed with the obligation or charge of performing the three Kattalais mentioned in clause 9 of the partition deed in the manner indicated therein. The alienation of the property is, therefore, not invalid and the obligation to perform the above mentioned charities follow with the property.
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Pandharinath Vs. State Of Maharashtra
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376 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.3. During the course of the trial, 9 witnesses were examined on behalf of the prosecution. Two defence witnesses, namely, Dr. Avinash Wase (D.W. 1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial court thereafter heard the counsel appearing for the parties and then passed an order of conviction against the appellant holding him guilty of the offence under Section 376 IPC and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months. 4. Aggrieved by the said decision of the trial court, an appeal was preferred in the High Court. The High Court by its Judgment and Order dated 31.01.2003 held the appellant guilty under Section 511 of the IPC for the offence of attempt to commit rape and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-. 5. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant filed the present appeal in this Court by way of special leave. We heard the learned senior counsel appearing for the appellant and have also perused the records available before us.6. Mrs. Anagha A. Desai, the learned counsel appearing for the appellant vehemently contended, inter alia, that there are serious contradictions in the statement of the prosecution witnesses. It was submitted that there were many other witnesses present at the time of commission of offence at the place of occurrence who were not examined by the prosecution. It was contended that there is failure on the part of prosecution for not examining even the husband of the prosecutrix. It was further submitted that the medical evidence does not support the statement of the prosecutrix that there was a rape on her by the accused although the doctor examined the prosecutrix on very next day. 7. In view of the aforesaid submissions, we have examined the records of the case. The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 ; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560. 9. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para: "16. What is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence." 10. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
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0[ds]The prosecutrix has clearly stated in her examination in chief that on waking up she found thesitting near her legs and theremoved her under garments and gagged her mouth. Subsequently, thefelt sorry for the incident and also apologized for the same. There is no suggestion in theon the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in herthat the accused had removed her clothes. Thehad also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If thehad removed her clothes and he had not rebutted this statement of the prosecutrix in hisit is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed.It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged.So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
| 0 | 1,678 | 318 |
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376 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.3. During the course of the trial, 9 witnesses were examined on behalf of the prosecution. Two defence witnesses, namely, Dr. Avinash Wase (D.W. 1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial court thereafter heard the counsel appearing for the parties and then passed an order of conviction against the appellant holding him guilty of the offence under Section 376 IPC and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months. 4. Aggrieved by the said decision of the trial court, an appeal was preferred in the High Court. The High Court by its Judgment and Order dated 31.01.2003 held the appellant guilty under Section 511 of the IPC for the offence of attempt to commit rape and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-. 5. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant filed the present appeal in this Court by way of special leave. We heard the learned senior counsel appearing for the appellant and have also perused the records available before us.6. Mrs. Anagha A. Desai, the learned counsel appearing for the appellant vehemently contended, inter alia, that there are serious contradictions in the statement of the prosecution witnesses. It was submitted that there were many other witnesses present at the time of commission of offence at the place of occurrence who were not examined by the prosecution. It was contended that there is failure on the part of prosecution for not examining even the husband of the prosecutrix. It was further submitted that the medical evidence does not support the statement of the prosecutrix that there was a rape on her by the accused although the doctor examined the prosecutrix on very next day. 7. In view of the aforesaid submissions, we have examined the records of the case. The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 ; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560. 9. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para: "16. What is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence." 10. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
### Response:
0
### Explanation:
The prosecutrix has clearly stated in her examination in chief that on waking up she found thesitting near her legs and theremoved her under garments and gagged her mouth. Subsequently, thefelt sorry for the incident and also apologized for the same. There is no suggestion in theon the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in herthat the accused had removed her clothes. Thehad also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If thehad removed her clothes and he had not rebutted this statement of the prosecutrix in hisit is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed.It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged.So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
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Tribeni Devi And Ors Vs. Collector Of Ranchi
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determined. 5. Bearing these principles in mind, we do not think that the High Court was justified in adopting the registered sale-deed, Ex. C-1 executed by the Ranchi Club, in favour of the President of India, because that land is farther away not only from the land acquired but from the town though it is on the main Ranchi-Chaibasa Road. Even the High Court recognised that there was no definite recognised that there was no definite date for the two additions that have been made and in our view it would not be a proper method of ascertaining the value of the land acquired. The only two documents that may be considered are Ex. 10 and Ex. 11 which are in respect of the lands situated in the vicinity and on either side of the land acquired. The other sale deeds are of smaller areas and do not furnish a proper basis for ascertaining the market value and have been quite properly not relied upon by the learned Advocate for the claimants. The annual rental value of the land acquired, namely, Rupees 7,200/- will also not furnish a proper method of computation because that was a rent fixed in 1944 when that land was not of such great value as it had acquired at the time when Section 4 notification was issued. A perusal of the correspondence between the owners of the land and the Deputy Commissioner of Ranchi would show that the land owners had given it at concessional rate to the Military authorities having regard to the purpose for which it was being put to use. On behalf of the claimants great reliance is placed on Ex. 11 which is a sale-deed executed on 16-12-1946 by the claimants to the Ranchi Automobiles of an area of 1 bigha 17 Kathas equal to 617 acres for Rs. 1,45,000/-. After deducting Rupees 15,403/- the price of the structures according to the Engineers report in 1959 (Ex. 25) the net value of the land is Rs. 1,29,697/- . This value would work out to Rs. 2,08,135.70 per acre. The High Court rejected the computation on the ground that though the land was contiguous to the land under acquisition, neither the value of the pump and the other structures belonging to Burmah Shell nor the value of the structure that might have been on the land on the date of the sale which were built by the venders as lessees could be ascertained either from the sale-deed or the evidence. Ex. 10 is a lease in respect of 1/3 acre granted by the owners to Thakur Chandra Bali Shah and others executed on 20-2-1950 on a monthly rent of Rupees 157/-. The High Court calculated the monthly rental of the land under acquisition at that rate to be not less than Rupees 2,000/- per month or Rupees 24,000/- per year. On the basis of 20 times the annual rent is computed Rupees 4,80,000/- as the market value which works out at Rupees 1,03,226/- per acre. It is, however, points out on behalf of the claimants that the High Court made a mistake in thinking that the rent for the land leased under Ex. 10 was Rupees 157/- p.m. and on that basis is calculated the annual rental value of 4.65 acres of the acquired land. We have checked the figures from the original lease and find that in fact the rent is Rupees 175/- and not Rupees 157/-. On this basis the rate per acre of 20 times annual rental value would come to Rs. 1,26,000/-. Even if Ex., 11 is to be taken as the basis and the value of the structures as given by the Engineer in Ex. 25 in to be accepted that cannot furnish a proper basis because the land in question is a small area of 617 acres or just over 1/2 an acre. A smaller area such as this on a main road would certainly fetch a higher price compared to a larger undeveloped area even though it may have a frontage on the main road. In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, draingage and other amenities. On this basis, the value of the land at Rupees 2,08,135.70 per acre would, after deduction of 1/3, come to Rs. 1,38,757/- per acre. On the basis of the rental of Rupees 175/- p.m. in Ex. 10, the value at 20 times the rental will work out as already seen at Rs. 1,26,000/-. Allowing for an increase in rents from 1950 to 1954, the date of Section 4 notification, say at 5% the value per acre may be Rupees 1,33,000/- or there about. If we take the average of Ex. 10 and Ex. 11 as computed by us the value per acre would come to about Rupees 1,35,878/-. In our view, Rupees, 1,35,000/- per acre would be a reasonable rate at which compensation could be awarded to the claimants. The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately. The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhota nagpur as compensation for severance merely because there was an entrance to the land. When a portion of the lands is acquired and a large portion left out there would be a diminution in the value of the land that is left out for which some compensation has to be allowed. The 5% allowed by the Judicial Commissioner, Chhota-Nagpur is reasonable. In this view, the claimants would be entitled to a decree as follows in respect of the lands acquired:- (1) At the rate of Rupees 1,35,000/- per acre for 4.65 acres; (2) 5% severance and 15% solatium on the market value computed as in (1): (3) Interest at 6% from the date of taking possession.
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1[ds]In the valuation report given by the Land Acquisition Officer, Ranchi, Ex.-1 the principle of capitalisation on the basis of 20 times the annual rental of Rs. 7,200/- at the rate of Rs. 600/- p.m. was adopted as the price of the lands. In that report it was also pointed out that the sale price of 1,085 acres out of the premises of the Ranchi Club as per registered sale-deed, Ex. C-1 dated 1-4-1953, was Rs. 41, 470/- per acre, which was not fair. Apart from these, 25 other sale transactions in respect of portions of Plot No. 1789 between 1952 and 1953 were also referred in that report. Some of those lands were situated opposite to the Ranchi Club and the sale price came to Rs. 1092/- per katha, which is about Rs. 60,000/- per acre. It was further pointed out that some other lands a little further away from the main road but belonging to the same Plot No. 1789 were sold at the rates between Rs. 250/- to Rs. 800/- per katha. This report formed the basis of the award made by the Collector. The High Court took judicial notice, and in our view rightly so, that after the termination of the Second World War in 1945 there was a rise in land values due to the increased demand of homestead lands for building purposes. It also considered various sale-deeds produced and proved on behalf of the claimants along with the oral evidence to determine the market value of the land. The objections from both the appellant and the respondent were taken into account in respect of each of these and most of them were considered as not furnishing a proper or adequate valuation either having regard to the distance of the lands which were the subject-matter of the sale or the inadequacy of the information pertaining thereto. The High Court, however, adopted the price in the sale deed Ex. C-1 executed on 6-5-1953 by the Ranchi Club Ltd., in favour of the President of India in respect of 1,085 acres 3 bighas 5 kathas 10 chhataks in Plot No. 1221 for Rs. 45,000/- as the basis for arriving at the market value of the acquired land. Though the land in question was situated on the main Ranchi-Chaibasa Road, a strong objection was taken against adopting the price as a basis because it was not only 1/2 mile away from the land under acquisition but what was sold was only the lease-hold right in the land. These objections were rejected on the ground that for all practical purposes the interest that was held or sold by the Ranchi Club under Ex. C-1 was not inferior to an absolute title. The area of the land the subject-matter of the sale, was considered to be fairly large being more than 1 acre and the situation was also the same as the land under acquisition expect that it was further away from it. In these circumstances, the High Court thought, after a proper allowance is made for the difference in distance, the transaction yields a more acceptable guide for determining the market value of the land under acquisition and accordingly, it adopted twice the price as charged for the land in Ext. C-1 as indicating a fair market value of the land in question. The High Court further added Rs. 7060/- per acre as the difference between tenure rights and lease-hold rights that were held by the President of India and awarded Rs. 90,000/- per acre. This, it did not withstanding the fact that it was conscious that there was no definite data for the two additional that have been made, because in its view in cases of this nature a certain amount of estimate has to be made which may even be arbitrary. Accordingly, it awarded compensation for the 4.65 acres of land which was acquired by the Government at Rs. 90,000/- per acre together with 15% solatium payable under clause (2) of section 23 of the Act 5% compensation for severance of land from the claimants other portion of the land that remained with them after acquisition, which was awarded by the Judicial Commissioner, Chhota Nagpur, was disallowed on the ground that there was an entrance to the back portion of the land which was left with the owners and also because there was no evidence to show that in fact there had been any depreciation in the value of the remaining area and if so, to what extent. On the other hand, it maintained the 10% on the market value of the land awarded by the Land Acquisition Court on account of the increase in the potentialities of the land. The basis adopted by the High Court is challenged on the ground that they are contrary to the well established principles applicable for determining the value of lands acquired under the Act4. The general principles for determining compensation have been set out in Ss. 23 and 24 of the Act. The compensation payable to the owner of the land is the market value which is determined reference to the price which a seller might reasonably expect to obtain from a willing purchaser, but as this may not be possible to ascertain with any amount of precision, the authority charged with the duty to award compensation is bound to make an estimate is bound to make an estimate judged by an objective standard. The land acquired has, therefore, to be valued not only with reference to its condition at the time of the declaration under section 4 of the Act but its potential value also must be taken into account. The sale-deeds of the lands situated in the vicinity and the comparable benefits and advantages which they have, furnish a rough and ready method of computing the market value. This, however, is not the only method. The rent which an owner was actually receiving at the relevant point of time or the rent which the neighbouring lands of similar nature are fetching can be taken into account by capitalising the rent which according to the present prevailing rate of interest is 20 times the annual rent. But this also is not a conclusive method. This Court had in Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty, (1959) Suppl 1 SCR 404 = (AIR 1959 SC 429 ) indicated at page 412 the methods of valuation to be adopted in ascertaining the market value of the land on the date of the notification under Section 4 (1) which are : (I) opinion of experts, (ii) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive as near as possible at an estimate of the market value. In arriving at a reasonable correct market value, it may be necessary to taken event two or all of those methods into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined5. Bearing these principles in mind, we do not think that the High Court was justified in adopting the registered sale-deed, Ex. C-1 executed by the Ranchi Club, in favour of the President of India, because that land is farther away not only from the land acquired but from the town though it is on the main Ranchi-Chaibasa Road. Even the High Court recognised that there was no definite recognised that there was no definite date for the two additions that have been made and in our view it would not be a proper method of ascertaining the value of the land acquired. The only two documents that may be considered are Ex. 10 and Ex. 11 which are in respect of the lands situated in the vicinity and on either side of the land acquired. The other sale deeds are of smaller areas and do not furnish a proper basis for ascertaining the market value and have been quite properly not relied upon by the learned Advocate for the claimants. The annual rental value of the land acquired, namely, Rupees 7,200/- will also not furnish a proper method of computation because that was a rent fixed in 1944 when that land was not of such great value as it had acquired at the time when Section 4 notification was issued. A perusal of the correspondence between the owners of the land and the Deputy Commissioner of Ranchi would show that the land owners had given it at concessional rate to the Military authorities having regard to the purpose for which it was being put to use. On behalf of the claimants great reliance is placed on Ex. 11 which is a sale-deed executed on 16-12-1946 by the claimants to the Ranchi Automobiles of an area of 1 bigha 17 Kathas equal to 617 acres for Rs. 1,45,000/-. After deducting Rupees 15,403/- the price of the structures according to the Engineers report in 1959 (Ex. 25) the net value of the land is Rs. 1,29,697/- . This value would work out to Rs. 2,08,135.70 per acre. The High Court rejected the computation on the ground that though the land was contiguous to the land under acquisition, neither the value of the pump and the other structures belonging to Burmah Shell nor the value of the structure that might have been on the land on the date of the sale which were built by the venders as lessees could be ascertained either from the sale-deed or the evidence. Ex. 10 is a lease in respect of 1/3 acre granted by the owners to Thakur Chandra Bali Shah and others executed on 20-2-1950 on a monthly rent of Rupees 157/-. The High Court calculated the monthly rental of the land under acquisition at that rate to be not less than Rupees 2,000/- per month or Rupees 24,000/- per year. On the basis of 20 times the annual rent is computed Rupees 4,80,000/- as the market value which works out at Rupees 1,03,226/- per acre. It is, however, points out on behalf of the claimants that the High Court made a mistake in thinking that the rent for the land leased under Ex. 10 was Rupees 157/- p.m. and on that basis is calculated the annual rental value of 4.65 acres of the acquired land. We have checked the figures from the original lease and find that in fact the rent is Rupees 175/- and not Rupees 157/-. On this basis the rate per acre of 20 times annual rental value would come to Rs. 1,26,000/-. Even if Ex., 11 is to be taken as the basis and the value of the structures as given by the Engineer in Ex. 25 in to be accepted that cannot furnish a proper basis because the land in question is a small area of 617 acres or just over 1/2 an acre. A smaller area such as this on a main road would certainly fetch a higher price compared to a larger undeveloped area even though it may have a frontage on the main road. In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, draingage and other amenities. On this basis, the value of the land at Rupees 2,08,135.70 per acre would, after deduction of 1/3, come to Rs. 1,38,757/- per acre. On the basis of the rental of Rupees 175/- p.m. in Ex. 10, the value at 20 times the rental will work out as already seen at Rs. 1,26,000/-. Allowing for an increase in rents from 1950 to 1954, the date of Section 4 notification, say at 5% the value per acre may be Rupees 1,33,000/- or there about. If we take the average of Ex. 10 and Ex. 11 as computed by us the value per acre would come to about Rupees 1,35,878/-. In our view, Rupees, 1,35,000/- per acre would be a reasonable rate at which compensation could be awarded to the claimants. The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately. The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhota nagpur as compensation for severance merely because there was an entrance to the land. When a portion of the lands is acquired and a large portion left out there would be a diminution in the value of the land that is left out for which some compensation has to be allowed. The 5% allowed by the Judicial Commissioner, Chhota-Nagpur is reasonable. In this view, the claimants would be entitled to a decree as follows in respect of the lands acquired:-(1) At the rate of Rupees 1,35,000/- per acre for 4.65 acres;(2) 5% severance and 15% solatium on the market value computed as in (1):(3) Interest at 6% from the date of taking possession.
| 1 | 3,002 | 2,444 |
### 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:
determined. 5. Bearing these principles in mind, we do not think that the High Court was justified in adopting the registered sale-deed, Ex. C-1 executed by the Ranchi Club, in favour of the President of India, because that land is farther away not only from the land acquired but from the town though it is on the main Ranchi-Chaibasa Road. Even the High Court recognised that there was no definite recognised that there was no definite date for the two additions that have been made and in our view it would not be a proper method of ascertaining the value of the land acquired. The only two documents that may be considered are Ex. 10 and Ex. 11 which are in respect of the lands situated in the vicinity and on either side of the land acquired. The other sale deeds are of smaller areas and do not furnish a proper basis for ascertaining the market value and have been quite properly not relied upon by the learned Advocate for the claimants. The annual rental value of the land acquired, namely, Rupees 7,200/- will also not furnish a proper method of computation because that was a rent fixed in 1944 when that land was not of such great value as it had acquired at the time when Section 4 notification was issued. A perusal of the correspondence between the owners of the land and the Deputy Commissioner of Ranchi would show that the land owners had given it at concessional rate to the Military authorities having regard to the purpose for which it was being put to use. On behalf of the claimants great reliance is placed on Ex. 11 which is a sale-deed executed on 16-12-1946 by the claimants to the Ranchi Automobiles of an area of 1 bigha 17 Kathas equal to 617 acres for Rs. 1,45,000/-. After deducting Rupees 15,403/- the price of the structures according to the Engineers report in 1959 (Ex. 25) the net value of the land is Rs. 1,29,697/- . This value would work out to Rs. 2,08,135.70 per acre. The High Court rejected the computation on the ground that though the land was contiguous to the land under acquisition, neither the value of the pump and the other structures belonging to Burmah Shell nor the value of the structure that might have been on the land on the date of the sale which were built by the venders as lessees could be ascertained either from the sale-deed or the evidence. Ex. 10 is a lease in respect of 1/3 acre granted by the owners to Thakur Chandra Bali Shah and others executed on 20-2-1950 on a monthly rent of Rupees 157/-. The High Court calculated the monthly rental of the land under acquisition at that rate to be not less than Rupees 2,000/- per month or Rupees 24,000/- per year. On the basis of 20 times the annual rent is computed Rupees 4,80,000/- as the market value which works out at Rupees 1,03,226/- per acre. It is, however, points out on behalf of the claimants that the High Court made a mistake in thinking that the rent for the land leased under Ex. 10 was Rupees 157/- p.m. and on that basis is calculated the annual rental value of 4.65 acres of the acquired land. We have checked the figures from the original lease and find that in fact the rent is Rupees 175/- and not Rupees 157/-. On this basis the rate per acre of 20 times annual rental value would come to Rs. 1,26,000/-. Even if Ex., 11 is to be taken as the basis and the value of the structures as given by the Engineer in Ex. 25 in to be accepted that cannot furnish a proper basis because the land in question is a small area of 617 acres or just over 1/2 an acre. A smaller area such as this on a main road would certainly fetch a higher price compared to a larger undeveloped area even though it may have a frontage on the main road. In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, draingage and other amenities. On this basis, the value of the land at Rupees 2,08,135.70 per acre would, after deduction of 1/3, come to Rs. 1,38,757/- per acre. On the basis of the rental of Rupees 175/- p.m. in Ex. 10, the value at 20 times the rental will work out as already seen at Rs. 1,26,000/-. Allowing for an increase in rents from 1950 to 1954, the date of Section 4 notification, say at 5% the value per acre may be Rupees 1,33,000/- or there about. If we take the average of Ex. 10 and Ex. 11 as computed by us the value per acre would come to about Rupees 1,35,878/-. In our view, Rupees, 1,35,000/- per acre would be a reasonable rate at which compensation could be awarded to the claimants. The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately. The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhota nagpur as compensation for severance merely because there was an entrance to the land. When a portion of the lands is acquired and a large portion left out there would be a diminution in the value of the land that is left out for which some compensation has to be allowed. The 5% allowed by the Judicial Commissioner, Chhota-Nagpur is reasonable. In this view, the claimants would be entitled to a decree as follows in respect of the lands acquired:- (1) At the rate of Rupees 1,35,000/- per acre for 4.65 acres; (2) 5% severance and 15% solatium on the market value computed as in (1): (3) Interest at 6% from the date of taking possession.
### Response:
1
### Explanation:
valuation can be accurately determined5. Bearing these principles in mind, we do not think that the High Court was justified in adopting the registered sale-deed, Ex. C-1 executed by the Ranchi Club, in favour of the President of India, because that land is farther away not only from the land acquired but from the town though it is on the main Ranchi-Chaibasa Road. Even the High Court recognised that there was no definite recognised that there was no definite date for the two additions that have been made and in our view it would not be a proper method of ascertaining the value of the land acquired. The only two documents that may be considered are Ex. 10 and Ex. 11 which are in respect of the lands situated in the vicinity and on either side of the land acquired. The other sale deeds are of smaller areas and do not furnish a proper basis for ascertaining the market value and have been quite properly not relied upon by the learned Advocate for the claimants. The annual rental value of the land acquired, namely, Rupees 7,200/- will also not furnish a proper method of computation because that was a rent fixed in 1944 when that land was not of such great value as it had acquired at the time when Section 4 notification was issued. A perusal of the correspondence between the owners of the land and the Deputy Commissioner of Ranchi would show that the land owners had given it at concessional rate to the Military authorities having regard to the purpose for which it was being put to use. On behalf of the claimants great reliance is placed on Ex. 11 which is a sale-deed executed on 16-12-1946 by the claimants to the Ranchi Automobiles of an area of 1 bigha 17 Kathas equal to 617 acres for Rs. 1,45,000/-. After deducting Rupees 15,403/- the price of the structures according to the Engineers report in 1959 (Ex. 25) the net value of the land is Rs. 1,29,697/- . This value would work out to Rs. 2,08,135.70 per acre. The High Court rejected the computation on the ground that though the land was contiguous to the land under acquisition, neither the value of the pump and the other structures belonging to Burmah Shell nor the value of the structure that might have been on the land on the date of the sale which were built by the venders as lessees could be ascertained either from the sale-deed or the evidence. Ex. 10 is a lease in respect of 1/3 acre granted by the owners to Thakur Chandra Bali Shah and others executed on 20-2-1950 on a monthly rent of Rupees 157/-. The High Court calculated the monthly rental of the land under acquisition at that rate to be not less than Rupees 2,000/- per month or Rupees 24,000/- per year. On the basis of 20 times the annual rent is computed Rupees 4,80,000/- as the market value which works out at Rupees 1,03,226/- per acre. It is, however, points out on behalf of the claimants that the High Court made a mistake in thinking that the rent for the land leased under Ex. 10 was Rupees 157/- p.m. and on that basis is calculated the annual rental value of 4.65 acres of the acquired land. We have checked the figures from the original lease and find that in fact the rent is Rupees 175/- and not Rupees 157/-. On this basis the rate per acre of 20 times annual rental value would come to Rs. 1,26,000/-. Even if Ex., 11 is to be taken as the basis and the value of the structures as given by the Engineer in Ex. 25 in to be accepted that cannot furnish a proper basis because the land in question is a small area of 617 acres or just over 1/2 an acre. A smaller area such as this on a main road would certainly fetch a higher price compared to a larger undeveloped area even though it may have a frontage on the main road. In order to develop that area at least the value of 1/3 of the land will have to be deducted for roads, draingage and other amenities. On this basis, the value of the land at Rupees 2,08,135.70 per acre would, after deduction of 1/3, come to Rs. 1,38,757/- per acre. On the basis of the rental of Rupees 175/- p.m. in Ex. 10, the value at 20 times the rental will work out as already seen at Rs. 1,26,000/-. Allowing for an increase in rents from 1950 to 1954, the date of Section 4 notification, say at 5% the value per acre may be Rupees 1,33,000/- or there about. If we take the average of Ex. 10 and Ex. 11 as computed by us the value per acre would come to about Rupees 1,35,878/-. In our view, Rupees, 1,35,000/- per acre would be a reasonable rate at which compensation could be awarded to the claimants. The High Court was not justified in giving 10% towards potential value because that element is inherent in the fixation of the market value of the land and could not be assessed separately. The High Court was also not justified in disallowing 5% awarded by the Judicial Commissioner, Chhota nagpur as compensation for severance merely because there was an entrance to the land. When a portion of the lands is acquired and a large portion left out there would be a diminution in the value of the land that is left out for which some compensation has to be allowed. The 5% allowed by the Judicial Commissioner, Chhota-Nagpur is reasonable. In this view, the claimants would be entitled to a decree as follows in respect of the lands acquired:-(1) At the rate of Rupees 1,35,000/- per acre for 4.65 acres;(2) 5% severance and 15% solatium on the market value computed as in (1):(3) Interest at 6% from the date of taking possession.
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Godhra Borough Municipality Vs. Godhra Electricity Co. Ltd
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the same person is the owner and occupier) and find out the rent at which the premises would be let. The second was based on the capital value of the premises. But the tax was not levied on the capital value itself, the capital value was determined on the structural value of the building to be assessed by what was known to be contractors method or contractors test in addition to the market value of the land. Sometimes the words "effective capital value" were also used since in most cases the actual capital cost of the building plus the market value of land might for some reason or the other be ineffective i. e., it might not be rent producing. Having arrived at the effective capital value it was necessary to apply percentages thereto in order to arrive at the annual value." When legislatures in this country enact statutes which closely resemble statutes in England and have the same purpose and object in view, then unless the expressions used in the Indian Statutes are defined, courts of law cannot go wrong in interpreting them in the way English Judges have done. Further the words which have acquired a particular shade of meaning in England may be given the same meaning unless there is anything in the statute itself which would be contra indicative.In Gordhandass case 1964-2 SCR 608 = (AIR 1963 SC 1742 ) (supra) the statute which this Court had to interpret was the same Act which is before us in this case Consequently, that decision affords us a good guide in forming our own conclusion in this case. Section 75 of the Act has an Explanation introduced in 1966 which reads as follows :"Explanation.-For the purposes of a rate on buildings or lands, the basis of valuation may be (i) the annual letting value (ii) the annual value; (iii) the floor area, in the case of mills, factories and buildings and lands connected therewith, (iv) the capital value in the case of vacant lands." The Explanation is deemed always to have been substituted for the original by Maharashtra Act 3 of 1966. S. 3 (b). 9. Rule 4 of Godhra Municipal Rules shows what properties are to be valued on the capital basis. What the capital basis is not defined. The capital value however can be determined in the way laid down in Gordhandass case, (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) (supra) by adopting the contractors method. What that method is has been explained in Ryde on Rating (Eleventh Edition) Chapter 20. In R. v. School Board for London, (1885) 55 LJMC 33 on appeal (1886) 17 QBD 733 Cave, J. applied the contractors test to schools. Ryde points out that it was tacitly recognised as applicable in various other cases. The principle on which the contractors basis rests are given by the author at page 439 and the method of its applications is given at page 442. The learned author notes that in "applying the contractors basis it is possible to discern five stages. The first stage is the estimation of the cost of construction of the building." There is a difference of view as to whether it is better to take the cost of replacing the actual building as it is, or the cost of a substitute building on the same plan as the actual building but otherwise in an up-to-date form The second stage is "to make deductions from the cost of construction to allow for age, obsolescence and any other factors necessary to arrive at the effective capital value" The third stage is to estimate the cost of the land The fourth stage is to apply the market rate or rates at which money can be borrowed or invested to the effective capital value of the building and the land. The fifth stage is to consider whether the result of the fourth stage really represents what the hypothetical tenant would pay for the annual tenancy on the statutory terms and to make any adjustments necessary to ensure that no higher rent is fixed as the basis of assessments than that which it is believed the owner would really be willing to pay for the occupation of the premises. 10. Rule 5 of the Godhra Municipal Rules lays down that the capital value is to be determined in each case on reliable data furnished by the mills and the factories when called upon to do so and in the absence thereof is to be determined by the Chief Officer or expert value. The learned counsel for the respondent contended that here there were reliable data in that the balance sheet of the company showing the value of these properties for the purpose of the Companies Act and there was no reason why the same figures should not be adopted as the capital value of the lands and buildings within the jurisdiction of Godhra municipality. This clearly is fallacious as under Section 211 of the Companies Act, 1956 the balance sheet of a company has to be drawn up in the form prescribed by Schedule VI. Under the said Schedule, Part 1, the value of fixed assets has to be shown "distinguishing as far as possible between expenditure upon (a) good-will, (b) land, (c) buildings, (d) leaseholds, (e) railway sidings, (f) plant and machinery, (g) furniture and fittings, (h) development of property etc." The fourth column of the form which gives the instructions in accordance with which assets should be made out shows under each head "the original cost and the additions thereto and deductions therefrom during the year, and the total depreciation written off or provided up to the end of the Year is to be stated." It will therefore be noticed that the figures given in the balance sheet are merely statements in terms of the form given in Schedule VI. They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
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1[ds]Under Rule 4 (l) (b) above, the buildings of the respondent had to be valued on the capital basis. Under Rule 5 the capital value of properties had to be determined on such reliable data as the respondent might furnish and in the absence thereof, it would be the duty of the Chief Officer to determine the same. Before the Judicial Magistrate, one R. R. Tewari, an Assistant Secretary of the respondent who had affirmed an affidavit showing that the approximate value of the seven items of property on which tax was sought to be imposed as per the books of the company was Rs Rs.41,541-12-9. He sought to rely on the balance sheets and the accounts of the company audited under the Companies Act for the purpose. The Judicial Magistrate observed that the properties were 40 years old and according to Tewan the life of the office buildings was 50 years white that of others was only 30 years. Acting on the admission of Tewari that the price of building materials had increased three times the original figures in 1956-57 and taking into consideration the properties were over 40 years old, the Magistrate assessed the capital value at Rs. 90.0005. The said figures included the value of all the buildings of the company but those which were to be assessed were only seven out of which two residential bungalows and servants quarters were to be assessed on the rental value. The Sessions Judge therefore inferred from the above figures that Rs. 1,85,265 included at least Rs. 1,00,000 as the cost up to 51st March, 1955 of the factory buildings in question. The Sessions Judge found himself unable to accept the contention that the depreciated selling value of the property was the capital value for the purpose of assessment of house tax. He also did not accept the municipalitys contention that the cost of construction of buildings had gone up five times since 1920. Considering the rival contentions he fixed the capital value at three times the figure shown by the company, viz. Rs. 41,541 and rounded the same off to Rs. 1,25,0007. We find ourselves unable to accept the views expressed or the reasoning given in the judgment of the High Court. Section 73 empowered the municipality to impose a rate on buildings or lands. Now the word rate had not been defined in the Act but it has a well known meaning10. Rule 5 of the Godhra Municipal Rules lays down that the capital value is to be determined in each case on reliable data furnished by the mills and the factories when called upon to do so and in the absence thereof is to be determined by the Chief Officer or expert value. The learned counsel for the respondent contended that here there were reliable data in that the balance sheet of the company showing the value of these properties for the purpose of the Companies Act and there was no reason why the same figures should not be adopted as the capital value of the lands and buildings within the jurisdiction of Godhra municipality. This clearly is fallacious as under Section 211 ofthe Companies Act, 1956 the balance sheet of a company has to be drawn up in the form prescribed by Schedule VI. Under the said Schedule, Part 1, the value of fixed assets has to be shown "distinguishing as far as possible between expenditure upon (a) good-will, (b) land, (c) buildings, (d) leaseholds, (e) railway sidings, (f) plant and machinery, (g) furniture and fittings, (h) development of property etc." The fourth column of the form which gives the instructions in accordance with which assets should be made out shows under each head "the original cost and the additions thereto and deductions therefrom during the year, and the total depreciation written off or provided up to the end of the Year is to be stated." It will therefore be noticed that the figures given in the balance sheet are merely statements in terms of the form given in Schedule VI. They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
| 1 | 2,954 | 767 |
### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the same person is the owner and occupier) and find out the rent at which the premises would be let. The second was based on the capital value of the premises. But the tax was not levied on the capital value itself, the capital value was determined on the structural value of the building to be assessed by what was known to be contractors method or contractors test in addition to the market value of the land. Sometimes the words "effective capital value" were also used since in most cases the actual capital cost of the building plus the market value of land might for some reason or the other be ineffective i. e., it might not be rent producing. Having arrived at the effective capital value it was necessary to apply percentages thereto in order to arrive at the annual value." When legislatures in this country enact statutes which closely resemble statutes in England and have the same purpose and object in view, then unless the expressions used in the Indian Statutes are defined, courts of law cannot go wrong in interpreting them in the way English Judges have done. Further the words which have acquired a particular shade of meaning in England may be given the same meaning unless there is anything in the statute itself which would be contra indicative.In Gordhandass case 1964-2 SCR 608 = (AIR 1963 SC 1742 ) (supra) the statute which this Court had to interpret was the same Act which is before us in this case Consequently, that decision affords us a good guide in forming our own conclusion in this case. Section 75 of the Act has an Explanation introduced in 1966 which reads as follows :"Explanation.-For the purposes of a rate on buildings or lands, the basis of valuation may be (i) the annual letting value (ii) the annual value; (iii) the floor area, in the case of mills, factories and buildings and lands connected therewith, (iv) the capital value in the case of vacant lands." The Explanation is deemed always to have been substituted for the original by Maharashtra Act 3 of 1966. S. 3 (b). 9. Rule 4 of Godhra Municipal Rules shows what properties are to be valued on the capital basis. What the capital basis is not defined. The capital value however can be determined in the way laid down in Gordhandass case, (1964) 2 SCR 608 = (AIR 1963 SC 1742 ) (supra) by adopting the contractors method. What that method is has been explained in Ryde on Rating (Eleventh Edition) Chapter 20. In R. v. School Board for London, (1885) 55 LJMC 33 on appeal (1886) 17 QBD 733 Cave, J. applied the contractors test to schools. Ryde points out that it was tacitly recognised as applicable in various other cases. The principle on which the contractors basis rests are given by the author at page 439 and the method of its applications is given at page 442. The learned author notes that in "applying the contractors basis it is possible to discern five stages. The first stage is the estimation of the cost of construction of the building." There is a difference of view as to whether it is better to take the cost of replacing the actual building as it is, or the cost of a substitute building on the same plan as the actual building but otherwise in an up-to-date form The second stage is "to make deductions from the cost of construction to allow for age, obsolescence and any other factors necessary to arrive at the effective capital value" The third stage is to estimate the cost of the land The fourth stage is to apply the market rate or rates at which money can be borrowed or invested to the effective capital value of the building and the land. The fifth stage is to consider whether the result of the fourth stage really represents what the hypothetical tenant would pay for the annual tenancy on the statutory terms and to make any adjustments necessary to ensure that no higher rent is fixed as the basis of assessments than that which it is believed the owner would really be willing to pay for the occupation of the premises. 10. Rule 5 of the Godhra Municipal Rules lays down that the capital value is to be determined in each case on reliable data furnished by the mills and the factories when called upon to do so and in the absence thereof is to be determined by the Chief Officer or expert value. The learned counsel for the respondent contended that here there were reliable data in that the balance sheet of the company showing the value of these properties for the purpose of the Companies Act and there was no reason why the same figures should not be adopted as the capital value of the lands and buildings within the jurisdiction of Godhra municipality. This clearly is fallacious as under Section 211 of the Companies Act, 1956 the balance sheet of a company has to be drawn up in the form prescribed by Schedule VI. Under the said Schedule, Part 1, the value of fixed assets has to be shown "distinguishing as far as possible between expenditure upon (a) good-will, (b) land, (c) buildings, (d) leaseholds, (e) railway sidings, (f) plant and machinery, (g) furniture and fittings, (h) development of property etc." The fourth column of the form which gives the instructions in accordance with which assets should be made out shows under each head "the original cost and the additions thereto and deductions therefrom during the year, and the total depreciation written off or provided up to the end of the Year is to be stated." It will therefore be noticed that the figures given in the balance sheet are merely statements in terms of the form given in Schedule VI. They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
### Response:
1
### Explanation:
Under Rule 4 (l) (b) above, the buildings of the respondent had to be valued on the capital basis. Under Rule 5 the capital value of properties had to be determined on such reliable data as the respondent might furnish and in the absence thereof, it would be the duty of the Chief Officer to determine the same. Before the Judicial Magistrate, one R. R. Tewari, an Assistant Secretary of the respondent who had affirmed an affidavit showing that the approximate value of the seven items of property on which tax was sought to be imposed as per the books of the company was Rs Rs.41,541-12-9. He sought to rely on the balance sheets and the accounts of the company audited under the Companies Act for the purpose. The Judicial Magistrate observed that the properties were 40 years old and according to Tewan the life of the office buildings was 50 years white that of others was only 30 years. Acting on the admission of Tewari that the price of building materials had increased three times the original figures in 1956-57 and taking into consideration the properties were over 40 years old, the Magistrate assessed the capital value at Rs. 90.0005. The said figures included the value of all the buildings of the company but those which were to be assessed were only seven out of which two residential bungalows and servants quarters were to be assessed on the rental value. The Sessions Judge therefore inferred from the above figures that Rs. 1,85,265 included at least Rs. 1,00,000 as the cost up to 51st March, 1955 of the factory buildings in question. The Sessions Judge found himself unable to accept the contention that the depreciated selling value of the property was the capital value for the purpose of assessment of house tax. He also did not accept the municipalitys contention that the cost of construction of buildings had gone up five times since 1920. Considering the rival contentions he fixed the capital value at three times the figure shown by the company, viz. Rs. 41,541 and rounded the same off to Rs. 1,25,0007. We find ourselves unable to accept the views expressed or the reasoning given in the judgment of the High Court. Section 73 empowered the municipality to impose a rate on buildings or lands. Now the word rate had not been defined in the Act but it has a well known meaning10. Rule 5 of the Godhra Municipal Rules lays down that the capital value is to be determined in each case on reliable data furnished by the mills and the factories when called upon to do so and in the absence thereof is to be determined by the Chief Officer or expert value. The learned counsel for the respondent contended that here there were reliable data in that the balance sheet of the company showing the value of these properties for the purpose of the Companies Act and there was no reason why the same figures should not be adopted as the capital value of the lands and buildings within the jurisdiction of Godhra municipality. This clearly is fallacious as under Section 211 ofthe Companies Act, 1956 the balance sheet of a company has to be drawn up in the form prescribed by Schedule VI. Under the said Schedule, Part 1, the value of fixed assets has to be shown "distinguishing as far as possible between expenditure upon (a) good-will, (b) land, (c) buildings, (d) leaseholds, (e) railway sidings, (f) plant and machinery, (g) furniture and fittings, (h) development of property etc." The fourth column of the form which gives the instructions in accordance with which assets should be made out shows under each head "the original cost and the additions thereto and deductions therefrom during the year, and the total depreciation written off or provided up to the end of the Year is to be stated." It will therefore be noticed that the figures given in the balance sheet are merely statements in terms of the form given in Schedule VI. They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
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State Of Haryana Vs. Northern Indian Glass Industries Ltd
|
duly considered. 18. In the Chairman Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256 , Krishna Iyer J, one of the foremost apostles of human rights and natural justice, advocated that the Court ?.... cannot look at law in the abstract or natural justice as a mere artefact. Nor can we fit into a rigid mould the concept of reasonable opportunity..... If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law. ...? It would also be useful to recollect the observations of this Court in Union of India v. Jesus Sales Corporation, (1996) 4 SCC 69 wherein it has been enunciated that the dictat of natural justice, viz. affording an opportunity to the person concerned to present his case would be met if the person concerned had the opportunity to present his case and that all points were taken into consideration. More recently, in Patel Engineering Ltd. v. Union of India (2012) 11 SCC 257, this Court has opined ?that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State?. 19. In the instant case, the conduct of the Respondent has not only been utterly unfair but, in fact, it smacks of fraud, malpractice and malfeasance. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the Appellant State. According to its own affidavit filed before the High Court, the Respondent has executed 118 Sale Deeds in favour of various third parties, with several sales being in 2004-05. This is sought to be vindicated by the Respondent on the ground that since the land was returned to it in 2004 after the quashing of the acquisition was set aside by this Court, it could have executed final Sale Deeds in respect of Agreements to Sell of 1991 post repossession of the land. Whether it had entered into Agreements to Sell with third parties in 1991 or accepted Earnest Money thereagainst is not an enquiry to be made here. It is also the case of the Respondent that after the land remained in possession of the original landowners for twelve long years, it was beyond its control to establish the unit as was proposed and postulated at the time of acquisition and so in bona fide belief it sold the remaining land as well. The Respondent cannot predicate that after paying the cost of the land to the Appellant State and the enhanced compensation to the original landowners, it had become absolute owner of the land and consequently it could use the land in the manner it liked. 20. Some brief words with regard to persons who have purchased plots from the Respondent. If a diligent title-search had been conducted by them it would indubitably have disclosed that the sale transaction was contrary to the purpose of the acquisition, was not consonant with the clauses of the contract executed by the Appellant State and the Respondent and was intrinsically inconsistent with the terms and the tenor of law. Equities cannot emerge in favour of such purchasers who cannot but be presumed to have purposefully transgressed the law. Suchlike persons are not justified or entitled to seek impleadment in these proceedings. The impleadment applications are meritless and are dismissed. 21. The prayer in the writ petition was for the issuance of a writ of Certiorari quashing the Resumption Notice dated 6.1.2005 issued by the Appellant State. In the impugned Judgment the Division Bench has opined that the principles of natural justice applied irrespective of the nature of the cause or the gravity thereof and are not mere platitudes. In our analysis of the exposition of law contained hereinabove, we think that this unjustly sets far too broad and wide a parameter to the perceptions of natural justice. Quite to the contrary, Courts should be ?pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential?. We cannot lose perspective of the fact that protracted litigation had already taken place between the parties as a consequence of which the legal position of all affected parties had already become well-known. It seems to us that in the writ petition, the challenge was predicated on the perceived failure to adhere to the audi alterem partem rule and not to the correctness of the decision to resume possession of the land. In any event, we harbour no manner of doubt that the circumstances of the case warrant the issuance of the Resumption Notice of the land by the Appellant State. We also note that the ‘Resumption Notice? has been issued to the Respondent alone which, because of its actions, has forfeited whatsoever rights it may have enjoyed over the land in question. In fact the Respondent may be liable to make over to the Appellant State all the profit that it has illegally and unjustifiably reaped in its misutilization of the lands acquired for it for the purpose of setting up an industrial unit for manufacture of sheet glass with the accompanying projection of providing employment to almost a thousand workmen. How this Resumption Notice will be implemented against third parties is a matter on which we would think it prudent not to make any observations. The Appellant State may not treat the observations made by us above pertaining to third parties who have purchased land from the Respondent as conclusively circumscribing any relief to them and/or rendering it unnecessary to give any hearing to them. The Appellant State will avowedly have to proceed in accordance with law, especially since it has not maintained a watchful eye on the manner in which the land was dealt with by the Respondent.
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1[ds]19. In the instant case, the conduct of the Respondent has not only been utterly unfair but, in fact, it smacks of fraud, malpractice and malfeasance. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the Appellant State. According to its own affidavit filed before the High Court, the Respondent has executed 118 Sale Deeds in favour of various third parties, with several sales being in 2004-05. This is sought to be vindicated by the Respondent on the ground that since the land was returned to it in 2004 after the quashing of the acquisition was set aside by this Court, it could have executed final Sale Deeds in respect of Agreements to Sell of 1991 post repossession of the land. Whether it had entered into Agreements to Sell with third parties in 1991 or accepted Earnest Money thereagainst is not an enquiry to be made here. It is also the case of the Respondent that after the land remained in possession of the original landowners for twelve long years, it was beyond its control to establish the unit as was proposed and postulated at the time of acquisition and so in bona fide belief it sold the remaining land as well. The Respondent cannot predicate that after paying the cost of the land to the Appellant State and the enhanced compensation to the original landowners, it had become absolute owner of the land and consequently it could use the land in the manner it liked20. Some brief words with regard to persons who have purchased plots from the Respondent. If a diligent title-search had been conducted by them it would indubitably have disclosed that the sale transaction was contrary to the purpose of the acquisition, was not consonant with the clauses of the contract executed by the Appellant State and the Respondent and was intrinsically inconsistent with the terms and the tenor of law. Equities cannot emerge in favour of such purchasers who cannot but be presumed to have purposefully transgressed the law. Suchlike persons are not justified or entitled to seek impleadment in these proceedings. The impleadment applications are meritless and are dismissed21. The prayer in the writ petition was for the issuance of a writ of Certiorari quashing the Resumption Notice dated 6.1.2005 issued by the Appellant State. In the impugned Judgment the Division Bench has opined that the principles of natural justice applied irrespective of the nature of the cause or the gravity thereof and are not mere platitudes. In our analysis of the exposition of law contained hereinabove, we think that this unjustly sets far too broad and wide a parameter to the perceptions of natural justice. Quite to the contrary, Courts should be ?pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential?. We cannot lose perspective of the fact that protracted litigation had already taken place between the parties as a consequence of which the legal position of all affected parties had already become well-known. It seems to us that in the writ petition, the challenge was predicated on the perceived failure to adhere to the audi alterem partem rule and not to the correctness of the decision to resume possession of the land. In any event, we harbour no manner of doubt that the circumstances of the case warrant the issuance of the Resumption Notice of the land by the Appellant State. We also note that the ‘Resumption Notice? has been issued to the Respondent alone which, because of its actions, has forfeited whatsoever rights it may have enjoyed over the land in question. In fact the Respondent may be liable to make over to the Appellant State all the profit that it has illegally and unjustifiably reaped in its misutilization of the lands acquired for it for the purpose of setting up an industrial unit for manufacture of sheet glass with the accompanying projection of providing employment to almost a thousand workmen. How this Resumption Notice will be implemented against third parties is a matter on which we would think it prudent not to make any observations. The Appellant State may not treat the observations made by us above pertaining to third parties who have purchased land from the Respondent as conclusively circumscribing any relief to them and/or rendering it unnecessary to give any hearing to them. The Appellant State will avowedly have to proceed in accordance with law, especially since it has not maintained a watchful eye on the manner in which the land was dealt with by the Respondent
| 1 | 4,853 | 823 |
### 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:
duly considered. 18. In the Chairman Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256 , Krishna Iyer J, one of the foremost apostles of human rights and natural justice, advocated that the Court ?.... cannot look at law in the abstract or natural justice as a mere artefact. Nor can we fit into a rigid mould the concept of reasonable opportunity..... If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law. ...? It would also be useful to recollect the observations of this Court in Union of India v. Jesus Sales Corporation, (1996) 4 SCC 69 wherein it has been enunciated that the dictat of natural justice, viz. affording an opportunity to the person concerned to present his case would be met if the person concerned had the opportunity to present his case and that all points were taken into consideration. More recently, in Patel Engineering Ltd. v. Union of India (2012) 11 SCC 257, this Court has opined ?that there is no inviolable rule that a personal hearing of the affected party must precede every decision of the State?. 19. In the instant case, the conduct of the Respondent has not only been utterly unfair but, in fact, it smacks of fraud, malpractice and malfeasance. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the Appellant State. According to its own affidavit filed before the High Court, the Respondent has executed 118 Sale Deeds in favour of various third parties, with several sales being in 2004-05. This is sought to be vindicated by the Respondent on the ground that since the land was returned to it in 2004 after the quashing of the acquisition was set aside by this Court, it could have executed final Sale Deeds in respect of Agreements to Sell of 1991 post repossession of the land. Whether it had entered into Agreements to Sell with third parties in 1991 or accepted Earnest Money thereagainst is not an enquiry to be made here. It is also the case of the Respondent that after the land remained in possession of the original landowners for twelve long years, it was beyond its control to establish the unit as was proposed and postulated at the time of acquisition and so in bona fide belief it sold the remaining land as well. The Respondent cannot predicate that after paying the cost of the land to the Appellant State and the enhanced compensation to the original landowners, it had become absolute owner of the land and consequently it could use the land in the manner it liked. 20. Some brief words with regard to persons who have purchased plots from the Respondent. If a diligent title-search had been conducted by them it would indubitably have disclosed that the sale transaction was contrary to the purpose of the acquisition, was not consonant with the clauses of the contract executed by the Appellant State and the Respondent and was intrinsically inconsistent with the terms and the tenor of law. Equities cannot emerge in favour of such purchasers who cannot but be presumed to have purposefully transgressed the law. Suchlike persons are not justified or entitled to seek impleadment in these proceedings. The impleadment applications are meritless and are dismissed. 21. The prayer in the writ petition was for the issuance of a writ of Certiorari quashing the Resumption Notice dated 6.1.2005 issued by the Appellant State. In the impugned Judgment the Division Bench has opined that the principles of natural justice applied irrespective of the nature of the cause or the gravity thereof and are not mere platitudes. In our analysis of the exposition of law contained hereinabove, we think that this unjustly sets far too broad and wide a parameter to the perceptions of natural justice. Quite to the contrary, Courts should be ?pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential?. We cannot lose perspective of the fact that protracted litigation had already taken place between the parties as a consequence of which the legal position of all affected parties had already become well-known. It seems to us that in the writ petition, the challenge was predicated on the perceived failure to adhere to the audi alterem partem rule and not to the correctness of the decision to resume possession of the land. In any event, we harbour no manner of doubt that the circumstances of the case warrant the issuance of the Resumption Notice of the land by the Appellant State. We also note that the ‘Resumption Notice? has been issued to the Respondent alone which, because of its actions, has forfeited whatsoever rights it may have enjoyed over the land in question. In fact the Respondent may be liable to make over to the Appellant State all the profit that it has illegally and unjustifiably reaped in its misutilization of the lands acquired for it for the purpose of setting up an industrial unit for manufacture of sheet glass with the accompanying projection of providing employment to almost a thousand workmen. How this Resumption Notice will be implemented against third parties is a matter on which we would think it prudent not to make any observations. The Appellant State may not treat the observations made by us above pertaining to third parties who have purchased land from the Respondent as conclusively circumscribing any relief to them and/or rendering it unnecessary to give any hearing to them. The Appellant State will avowedly have to proceed in accordance with law, especially since it has not maintained a watchful eye on the manner in which the land was dealt with by the Respondent.
### Response:
1
### Explanation:
19. In the instant case, the conduct of the Respondent has not only been utterly unfair but, in fact, it smacks of fraud, malpractice and malfeasance. It cannot be justified as a simple error which may exonerate it of the allegations levelled against it by the Appellant State. According to its own affidavit filed before the High Court, the Respondent has executed 118 Sale Deeds in favour of various third parties, with several sales being in 2004-05. This is sought to be vindicated by the Respondent on the ground that since the land was returned to it in 2004 after the quashing of the acquisition was set aside by this Court, it could have executed final Sale Deeds in respect of Agreements to Sell of 1991 post repossession of the land. Whether it had entered into Agreements to Sell with third parties in 1991 or accepted Earnest Money thereagainst is not an enquiry to be made here. It is also the case of the Respondent that after the land remained in possession of the original landowners for twelve long years, it was beyond its control to establish the unit as was proposed and postulated at the time of acquisition and so in bona fide belief it sold the remaining land as well. The Respondent cannot predicate that after paying the cost of the land to the Appellant State and the enhanced compensation to the original landowners, it had become absolute owner of the land and consequently it could use the land in the manner it liked20. Some brief words with regard to persons who have purchased plots from the Respondent. If a diligent title-search had been conducted by them it would indubitably have disclosed that the sale transaction was contrary to the purpose of the acquisition, was not consonant with the clauses of the contract executed by the Appellant State and the Respondent and was intrinsically inconsistent with the terms and the tenor of law. Equities cannot emerge in favour of such purchasers who cannot but be presumed to have purposefully transgressed the law. Suchlike persons are not justified or entitled to seek impleadment in these proceedings. The impleadment applications are meritless and are dismissed21. The prayer in the writ petition was for the issuance of a writ of Certiorari quashing the Resumption Notice dated 6.1.2005 issued by the Appellant State. In the impugned Judgment the Division Bench has opined that the principles of natural justice applied irrespective of the nature of the cause or the gravity thereof and are not mere platitudes. In our analysis of the exposition of law contained hereinabove, we think that this unjustly sets far too broad and wide a parameter to the perceptions of natural justice. Quite to the contrary, Courts should be ?pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential?. We cannot lose perspective of the fact that protracted litigation had already taken place between the parties as a consequence of which the legal position of all affected parties had already become well-known. It seems to us that in the writ petition, the challenge was predicated on the perceived failure to adhere to the audi alterem partem rule and not to the correctness of the decision to resume possession of the land. In any event, we harbour no manner of doubt that the circumstances of the case warrant the issuance of the Resumption Notice of the land by the Appellant State. We also note that the ‘Resumption Notice? has been issued to the Respondent alone which, because of its actions, has forfeited whatsoever rights it may have enjoyed over the land in question. In fact the Respondent may be liable to make over to the Appellant State all the profit that it has illegally and unjustifiably reaped in its misutilization of the lands acquired for it for the purpose of setting up an industrial unit for manufacture of sheet glass with the accompanying projection of providing employment to almost a thousand workmen. How this Resumption Notice will be implemented against third parties is a matter on which we would think it prudent not to make any observations. The Appellant State may not treat the observations made by us above pertaining to third parties who have purchased land from the Respondent as conclusively circumscribing any relief to them and/or rendering it unnecessary to give any hearing to them. The Appellant State will avowedly have to proceed in accordance with law, especially since it has not maintained a watchful eye on the manner in which the land was dealt with by the Respondent
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M.P. Rural Agrl.Extension Offrs.Asson Vs. State Of M.P.
|
equal work is applicable among equals, it cannot be applied to un-equals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similarly placed employees. The court however cannot prescribe equal scales of pay for different class of employees. 19. A Bench of three Judges in which two of us were parties reiterated the same principle in Taun K. Roy and others (supra). 20. The aforementioned decisions are authorities for the proposition that deposit the fact that the employees have been performing similar duties and functions and their posts are interchangeable, a valid classification can be made on the basis of their educational qualification. The observation of Krishna Iyer, J., in V. Balasubramanyam (supra) although is interesting but it appears that the fact of the matter involved therein did not warrant application of the said principle. 21. The view of Subba Rao, J., in Lachhman Dass vs. State of Punjab and others (AIR 1963 SC 222 ) was a minority view., Venkatarama Aiyar, J., therein speaking for the majority held: .. The law is now well settled that while Art. 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does not forbid reasonable classification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 a law applying to one person or one class or persons is constitutional if there is sufficient basis or reason for it. This statement of the law was approved by this Court in Chiranjit Lal Chowdhury vs. Union of India, 1950 SCR 869. (AIR 1951 SC 41 ). There the question was whether a law providing for the management and control by the Government of a named company, the Sholapur Spinning & Weaving Company Ltd., was bad as offending Art. 14. It was held that even a single Company might, having regard to its features, be a category in itself and that unless it was shown that there were other Companies similarly circumstanced, the legislation must be presumed to be constitutional and the attack under Art. 14 must fail. In Ram Krishna Dalmia vs. S.R. Tendolkar, 1959 SCR 279 at p. 297: (AIR 1958 SC 538 at p. 547) this Court again examined in great detail this scope of Art. 14, and in enunciating the principles applicable in deciding whether a law is in contravention of that Article observed: that a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as class by himself. 22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P. Narasinga Rao (supra). 23. In B. Basavalingappa (supra) , a two-judge Bench of this Court did not notice the earlier binding precedents of this Court. In fact one of them, K.N. Singh, J., as the learned Chief Justice then was, a party to the subsequent decision in Mewa Ram Kanojia (supra). In that case no material was brought on records on the basis of which it could be contended that there was any substantial difference at that time between the two classifications although they were described differently. It was in that situation observed: ... It was argued that a diploma is a higher qualification than a certificate. But neither there is any curriculum on record nor any other material to draw that inference. On the contrary this circumstance that at the time when respondent was recruited a diploma holder or a certificate holder both were entitled to be recruited as an Instructor on the same pay scale indicates that in those days the two were considered to be alike. 24. In Pramod Bhartiya (supra), Jeevan Reddy, J. categorically held that burden to prove that a discrimination has been committed is upon the petitioners. In that case petitioners failed to discharge their burden. 25. Yet again in Shyam Babu Verma (supra), N.P. Singh, J., speaking for a three-Judge Bench observed: .. The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principles of equal pay for equal work should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. In equality of the men in different groups excludes applicability of the principle of equal pay for equal work to them... 26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. 27. For the reasons aforementioned, we are of the opinion that no case has been made for our interference with the impugned judgment.
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0[ds]It is trite that the Pay Commission on or about 13.10.1982 and in the year 1999 desired and recommended that the same scale of pay be given to the Extension Officers irrespective of their educational qualification, but it is not in dispute that the recommendations of the Pay Commission were not accepted by the State. The relevant portion of the recommendations of the Pay Commission and the order of the State GovernmentAlthough the Pay Commission is considered to be an expert body, the State in its wisdom an in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India14. Article 14, it is trite, does not forbid a reasonable classification. 15. Article 14 forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieve16. Constitutional interpretation is a difficult task. Its concept varies from statute to statute, fact to fact, situation to situation and subject matter to subject matter. A classification based on educational qualification has been applied by a Constitution Bench of this Court as far back as in 1968 in P. Narasinga Rao (supra), wherein it was observed: It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated. Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of the general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured, Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. 27. For the reasons aforementioned, we are of the opinion that no case has been made for our interference with the impugned judgment.
| 0 | 3,815 | 699 |
### 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:
equal work is applicable among equals, it cannot be applied to un-equals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similarly placed employees. The court however cannot prescribe equal scales of pay for different class of employees. 19. A Bench of three Judges in which two of us were parties reiterated the same principle in Taun K. Roy and others (supra). 20. The aforementioned decisions are authorities for the proposition that deposit the fact that the employees have been performing similar duties and functions and their posts are interchangeable, a valid classification can be made on the basis of their educational qualification. The observation of Krishna Iyer, J., in V. Balasubramanyam (supra) although is interesting but it appears that the fact of the matter involved therein did not warrant application of the said principle. 21. The view of Subba Rao, J., in Lachhman Dass vs. State of Punjab and others (AIR 1963 SC 222 ) was a minority view., Venkatarama Aiyar, J., therein speaking for the majority held: .. The law is now well settled that while Art. 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does not forbid reasonable classification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 a law applying to one person or one class or persons is constitutional if there is sufficient basis or reason for it. This statement of the law was approved by this Court in Chiranjit Lal Chowdhury vs. Union of India, 1950 SCR 869. (AIR 1951 SC 41 ). There the question was whether a law providing for the management and control by the Government of a named company, the Sholapur Spinning & Weaving Company Ltd., was bad as offending Art. 14. It was held that even a single Company might, having regard to its features, be a category in itself and that unless it was shown that there were other Companies similarly circumstanced, the legislation must be presumed to be constitutional and the attack under Art. 14 must fail. In Ram Krishna Dalmia vs. S.R. Tendolkar, 1959 SCR 279 at p. 297: (AIR 1958 SC 538 at p. 547) this Court again examined in great detail this scope of Art. 14, and in enunciating the principles applicable in deciding whether a law is in contravention of that Article observed: that a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as class by himself. 22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P. Narasinga Rao (supra). 23. In B. Basavalingappa (supra) , a two-judge Bench of this Court did not notice the earlier binding precedents of this Court. In fact one of them, K.N. Singh, J., as the learned Chief Justice then was, a party to the subsequent decision in Mewa Ram Kanojia (supra). In that case no material was brought on records on the basis of which it could be contended that there was any substantial difference at that time between the two classifications although they were described differently. It was in that situation observed: ... It was argued that a diploma is a higher qualification than a certificate. But neither there is any curriculum on record nor any other material to draw that inference. On the contrary this circumstance that at the time when respondent was recruited a diploma holder or a certificate holder both were entitled to be recruited as an Instructor on the same pay scale indicates that in those days the two were considered to be alike. 24. In Pramod Bhartiya (supra), Jeevan Reddy, J. categorically held that burden to prove that a discrimination has been committed is upon the petitioners. In that case petitioners failed to discharge their burden. 25. Yet again in Shyam Babu Verma (supra), N.P. Singh, J., speaking for a three-Judge Bench observed: .. The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principles of equal pay for equal work should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. In equality of the men in different groups excludes applicability of the principle of equal pay for equal work to them... 26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. 27. For the reasons aforementioned, we are of the opinion that no case has been made for our interference with the impugned judgment.
### Response:
0
### Explanation:
It is trite that the Pay Commission on or about 13.10.1982 and in the year 1999 desired and recommended that the same scale of pay be given to the Extension Officers irrespective of their educational qualification, but it is not in dispute that the recommendations of the Pay Commission were not accepted by the State. The relevant portion of the recommendations of the Pay Commission and the order of the State GovernmentAlthough the Pay Commission is considered to be an expert body, the State in its wisdom an in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India14. Article 14, it is trite, does not forbid a reasonable classification. 15. Article 14 forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieve16. Constitutional interpretation is a difficult task. Its concept varies from statute to statute, fact to fact, situation to situation and subject matter to subject matter. A classification based on educational qualification has been applied by a Constitution Bench of this Court as far back as in 1968 in P. Narasinga Rao (supra), wherein it was observed: It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated. Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of the general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured, Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. 27. For the reasons aforementioned, we are of the opinion that no case has been made for our interference with the impugned judgment.
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Orsu Venkat Rao Vs. State of Andhra Pradesh
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could hear the voice and cries of children at a later point of time. If there was a fight and when the fight was going on, at least PW 16, who was aged 10 years would not have kept quiet. He would have raised hue and cry or run out of the house for help. 7. According to PW2, they cried and raised the alarm only sometime after their father left the room bolting the door from outside. It is to be noted that the process of strangulation and throwing the rope over the beam which is 9½ feet above the ground level, and then tying the rope around the beam is not a simple process. It would have taken considerable time. It is possible to believe that all this time, the children were confined to their bed, though there was ample time and possibility of moving out during the time the accused was committing the crime? Apart from the unnatural conduct and responses of PWs 2 & 16, we have a doubt whether the hanging of the victim to the beam as spoken to by PWs 2 & 16 was at all possible. The beam, according to the observation of the I.O. was 9½ ft. above the ground level. It is doubtful whether it was possible to throw the rope on the beam after fastening it around her neck and then hang her while standing on the floor. For all these reasons, the evidence of the two children who claimed to be the eyewitnesses does not inspire confidence. 8. The evidence of PWs 3, 4 & 6 is in the nature of corroborating evidence. They are supposed to have gone to the house of the accused after hearing the cries of the children. Before adverting to the evidence of PWs 3 & 4, it must be noted that they are the brother and mother of PW5 by name Mohan with whom the deceased had illicit contact, according to the defence version. PW5 was confronted with the statements made to the police (D4 & D5) that he was having illicit intimacy with the deceased and that on the crucial day and just before the occurrence he was spending time with Chilakamma after leaving the house on the false pretext of movie (2nd show). Of course, he denied having stated so to the police. This background should be kept in view while appreciating their evidence. PW4 comes forward with a version that around 9.30 p.m., on hearing the cries of PWs 2 & 16,she made queries from her house as to why they were weeping and they informed her that their mother was hanged by a rope by their father. Then she and her son PW3 went to the house of the accused and saw the deceased hanging from the beam. It is doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that they over-heard the children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerable time. 9. There is one more aspect which deserves to be noticed in the context of evidence of PWs 3, 4 & 6. All of them in one voice stated that the police examined them at about noon time on the next day and recorded their statements at Garla which means the investigation at Garla had started even by 5.3.1993 whereas it is made to appear that such investigation commenced only in the night of 6.3.1993, i.e. nearly 33 hours later, as spoken to by PW20. Thus the earliest statements of PWs 3, 4 & 6 seem to have been suppressed. This is another infirmity in the prosecution case. 10. We are constrained to go into the matter in detail for the reason that the judgment of the High Court is sketchy and slipshod. What all has been said by the High Court is that the evidence of PWs 2 & 16 inspires confidence and their testimony remained unshaken in cross examination. It is further observed that the evidence of these witnesses is corroborated by medical evidence without appreciating the fact that PW18 the doctor was unable to say from the ligature marks or other features, whether the death was suicidal or homicidal. There was no critical evaluation of the evidence of the two child witnesses and there was no consideration of material aspects bearing on the veracity of the version given by PWs 2 & 16. In these circumstances, we cannot put our seal of approval to the conclusions of the High Court though concurrent they are. True, the circumstances raise strong suspicion against the accused, but it is difficult to sustain the conviction, once the evidence of the alleged eyewitnesses is discarded as unworthy of credence. This is a case in which benefit of doubt should have been given to the accused.
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1[ds]He reserved the opinion as to cause of death. On receipt of report from the Department of Forensic Medicine and the Forensic Science Laboratory, PW18 gave the opinion as per Ext. P11 that death was on account of asphyxia due to hanging. He deposed that the ligature marks were ante mortem in nature and that it was not possible to say whether ligature marks were attributable to suicide or homicide. He clarified that the injuries other than the ligature marks cannot beaccused then placed a rope around her neck, threw the rope over the beam and pulled the rope so as to cause her death. She was made to hang form the beam. When they cried and tried to intervene, the accused threatened to harm them showing a sickle towards them. Then, by bolting the door from outside, he slept in the first room. After some time, they raised hue and cry. Then PWs 3 & 4 came there and unbolted the door. Thereafter, their mother was taken to the hospital in a doli by their father accompanied by them and PWs 3 & 6. She was pronounced dead by the doctor. Then, the accused brought a hired jeep and took the dead body to the village Garla where their paternal grandparents were living. They also went in the jeep with the dead body. After sometime, their maternal grandparents and relatives came knowing about the death of their mother. PW2 would say that his father threatened them and asked them to tell others that his mother died on account of fits (perhaps meaning that she committed suicide in view of fits). PW2 further stated that his maternal grandparents enquired at about 7.00 or 8.00 p.m. on the next day (i.e. 5.3.1993) and at the point of time they revealed the real reason for the cause of death of their mother. However, PW16, the elder boy did not state so. The suggestion that they were tutored by the maternal grandparents wasfact, PW16 stated that after the police came and saw the dead body of his mother, his maternal grandparents and uncles asked him as to how his mother died. It shows that the version of PWs 2 & 16 was very much within the knowledge of their maternal grandparents and PW1 and there is no reason why they withheld the information to the police. PW21, who held the inquest, came forward with a curious version that he did not see the children when he went there and therefore he could not record their statements. But, such version of PW21 is demolished by the evidence of PWs 2 & 16 themselves which discloses in unmistakable terms that they were very much available at the place. The first thing that any Police Officer should have done was to enquire from the children who were in the know of things. No sensible police officer would refrain from examining the children at the earliest opportunity. Hence the statement of PW2 that they were examined at Wyra itself by the police must be correct. But, as per the police records, the examination of PWs 2 & 16 took place at Garla at the house of the accused (scene of offence) only in the night of 6th March, 1993 when PW19 reached there after getting the case file from Wyra at about 8 p.m.Multiple abrasions were found on the deceased which were notThat means, before strangulation, there should have been severe resistance by the deceased and in that process she would have received these injuries. But, nothing is mentioned about the fight by PWs 2 & 16. In fact, the deceased herself would have cried aloud and it could have been easily heard by PWs 3 & 4 who were living in the adjacent room. PWs 3 & 4s evidence reveals that they could hear the voice and cries of children at a later point of time. If there was a fight and when the fight was going on, at least PW 16, who was aged 10 years would not have kept quiet. He would have raised hue and cry or run out of the house foris doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that theythe children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerableis doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that theythe children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerable
| 1 | 3,440 | 1,223 |
### 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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could hear the voice and cries of children at a later point of time. If there was a fight and when the fight was going on, at least PW 16, who was aged 10 years would not have kept quiet. He would have raised hue and cry or run out of the house for help. 7. According to PW2, they cried and raised the alarm only sometime after their father left the room bolting the door from outside. It is to be noted that the process of strangulation and throwing the rope over the beam which is 9½ feet above the ground level, and then tying the rope around the beam is not a simple process. It would have taken considerable time. It is possible to believe that all this time, the children were confined to their bed, though there was ample time and possibility of moving out during the time the accused was committing the crime? Apart from the unnatural conduct and responses of PWs 2 & 16, we have a doubt whether the hanging of the victim to the beam as spoken to by PWs 2 & 16 was at all possible. The beam, according to the observation of the I.O. was 9½ ft. above the ground level. It is doubtful whether it was possible to throw the rope on the beam after fastening it around her neck and then hang her while standing on the floor. For all these reasons, the evidence of the two children who claimed to be the eyewitnesses does not inspire confidence. 8. The evidence of PWs 3, 4 & 6 is in the nature of corroborating evidence. They are supposed to have gone to the house of the accused after hearing the cries of the children. Before adverting to the evidence of PWs 3 & 4, it must be noted that they are the brother and mother of PW5 by name Mohan with whom the deceased had illicit contact, according to the defence version. PW5 was confronted with the statements made to the police (D4 & D5) that he was having illicit intimacy with the deceased and that on the crucial day and just before the occurrence he was spending time with Chilakamma after leaving the house on the false pretext of movie (2nd show). Of course, he denied having stated so to the police. This background should be kept in view while appreciating their evidence. PW4 comes forward with a version that around 9.30 p.m., on hearing the cries of PWs 2 & 16,she made queries from her house as to why they were weeping and they informed her that their mother was hanged by a rope by their father. Then she and her son PW3 went to the house of the accused and saw the deceased hanging from the beam. It is doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that they over-heard the children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerable time. 9. There is one more aspect which deserves to be noticed in the context of evidence of PWs 3, 4 & 6. All of them in one voice stated that the police examined them at about noon time on the next day and recorded their statements at Garla which means the investigation at Garla had started even by 5.3.1993 whereas it is made to appear that such investigation commenced only in the night of 6.3.1993, i.e. nearly 33 hours later, as spoken to by PW20. Thus the earliest statements of PWs 3, 4 & 6 seem to have been suppressed. This is another infirmity in the prosecution case. 10. We are constrained to go into the matter in detail for the reason that the judgment of the High Court is sketchy and slipshod. What all has been said by the High Court is that the evidence of PWs 2 & 16 inspires confidence and their testimony remained unshaken in cross examination. It is further observed that the evidence of these witnesses is corroborated by medical evidence without appreciating the fact that PW18 the doctor was unable to say from the ligature marks or other features, whether the death was suicidal or homicidal. There was no critical evaluation of the evidence of the two child witnesses and there was no consideration of material aspects bearing on the veracity of the version given by PWs 2 & 16. In these circumstances, we cannot put our seal of approval to the conclusions of the High Court though concurrent they are. True, the circumstances raise strong suspicion against the accused, but it is difficult to sustain the conviction, once the evidence of the alleged eyewitnesses is discarded as unworthy of credence. This is a case in which benefit of doubt should have been given to the accused.
### Response:
1
### Explanation:
the door from outside, he slept in the first room. After some time, they raised hue and cry. Then PWs 3 & 4 came there and unbolted the door. Thereafter, their mother was taken to the hospital in a doli by their father accompanied by them and PWs 3 & 6. She was pronounced dead by the doctor. Then, the accused brought a hired jeep and took the dead body to the village Garla where their paternal grandparents were living. They also went in the jeep with the dead body. After sometime, their maternal grandparents and relatives came knowing about the death of their mother. PW2 would say that his father threatened them and asked them to tell others that his mother died on account of fits (perhaps meaning that she committed suicide in view of fits). PW2 further stated that his maternal grandparents enquired at about 7.00 or 8.00 p.m. on the next day (i.e. 5.3.1993) and at the point of time they revealed the real reason for the cause of death of their mother. However, PW16, the elder boy did not state so. The suggestion that they were tutored by the maternal grandparents wasfact, PW16 stated that after the police came and saw the dead body of his mother, his maternal grandparents and uncles asked him as to how his mother died. It shows that the version of PWs 2 & 16 was very much within the knowledge of their maternal grandparents and PW1 and there is no reason why they withheld the information to the police. PW21, who held the inquest, came forward with a curious version that he did not see the children when he went there and therefore he could not record their statements. But, such version of PW21 is demolished by the evidence of PWs 2 & 16 themselves which discloses in unmistakable terms that they were very much available at the place. The first thing that any Police Officer should have done was to enquire from the children who were in the know of things. No sensible police officer would refrain from examining the children at the earliest opportunity. Hence the statement of PW2 that they were examined at Wyra itself by the police must be correct. But, as per the police records, the examination of PWs 2 & 16 took place at Garla at the house of the accused (scene of offence) only in the night of 6th March, 1993 when PW19 reached there after getting the case file from Wyra at about 8 p.m.Multiple abrasions were found on the deceased which were notThat means, before strangulation, there should have been severe resistance by the deceased and in that process she would have received these injuries. But, nothing is mentioned about the fight by PWs 2 & 16. In fact, the deceased herself would have cried aloud and it could have been easily heard by PWs 3 & 4 who were living in the adjacent room. PWs 3 & 4s evidence reveals that they could hear the voice and cries of children at a later point of time. If there was a fight and when the fight was going on, at least PW 16, who was aged 10 years would not have kept quiet. He would have raised hue and cry or run out of the house foris doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that theythe children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerableis doubtful whether the words alleged to have been uttered by PWs 2 or 16 from an enclosed room be heard by PW4 though the noise and cries could have been heard in view of the fact that they were living in the adjacent portion of the house. If PW4s version was correct, immediately on meeting the children, she would have ascertained the details from the children or she would have revealed it to other immediately. In fact PW3 did not go to the extent of saying that theythe children saying that the accused killed their mother by hanging her. He only stated that they knocked at the door whereupon the accused opened the door and the children on seeing the mother embraced her and thereafter they saw the deceased in hanging posture. Thus the evidence of PW4 in so far as she put certain incriminating words in the mouth of the children is unbelievable. PW6 is a neighbour, residing in the house in the opposite direction. She deposed almost on the same lines at PW3. One fact to be noticed is that this witness and her husband accompanied the deceased along with the accused and the children to the hospital. She did not state anything as to what the children revealed to her though she was in their company for a considerable
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Union Of India Vs. Raman Iron Foundry
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as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages Section 74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine preestimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contact in terrorem if a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under he English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages. That is not an actionable claim and this position is made amply clear by the amendment in Section 6(e) of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred. This has always been the law in England and as far back as 1858 we find it stated by Wightman, J., in Jones v. Thompson, (1858) 27 LJQB 234." Ex parte Charles and several other cases decide that the amount of a verdict in an action for unliquidated damages is not a debt till judgment has been signed." It was held in this case that a claim for damages does not become a debt even after the jury has returned a verdict in favour of the plaintiff till the judgment is actually delivered. So also in ODriscoll v. Manchester Insurance Committee, (1915) 3 KB 499. Swinfen Eady, L., J., said in reference to cases where the claim was for unliquidated damages "....... in such cases there is no debt at all until the verdict of the jury is pronounced assessing the damages and judgment is given". The same view has also been taken consistently by different High Court in India. We may mention only a few of the decisions, namely, Jabed Sheikh v. Taher Mallik, 45 Cal WN 519 = (AIR 1941 Cal 639 ); S. Milkha Singh v. M/s. N. K. Gopala Krishna Mudaliar, AIR 1956 Punj 174 Iron and Hardware (India) Co. v. Firm Shamlal and Bros, AIR 1954 Bom 423 . Chagla, C. J., in the last mentioned case, stated the law in these terms:"In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party.As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant."This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.
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0[ds]The Court obviously could not, therefore, make an interim order which, though ostensibly in form an order of interim injunction, in substance amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts. Such an interim order would clearly not be for the purpose of or in relation to the arbitration proceedings as required by Sec. 41(b). But here the order of interim injunction made by the learned Judge does not, expressly or by necessary implication, carry any direction to the appellant to pay the amounts due to the respondent under other contracts. It is not only in form but also in substance a negative injunction. It has no positive content. What it does is merely to injunct the appellant from recovering, suo motu, the damages claimed by it from out of other amounts due to the respondent. It does not direct that the appellant shall pay such amounts to the respondent. The appellant can still refuse to pay such amounts if it thinks it has a valid defence and if the appellant does so, the only remedy open to the respondent would be to take measures in an appropriate forum for recovery of such amounts where it would be decided whether the appellant is liable to pay such amounts to the respondent or not. No breach of the order of interim injunction as such would be involved in non-payment of such amounts by the appellant to the respondent. The only thing which the appellant is interdicted from doing is to make recovery of its claim for damages by appropriating such amounts in satisfaction of the claim. That is clearly within the power of the Court under Section 41(b) because the claim for damages forms the subject-matter of the arbitration proceedings and the Court can always say that until such claim, is adjudicated upon, the appellant shall be restrained from recovering it by appropriating other amounts due to the respondent. The order of interim injunction made by the learned Judge cannot, therefore, be said to be outside the scope of his power under Section 41(b) read with the Secondis only when a claim for damages is adjudicated upon by a Civil Court or an arbitrator and the breach of the contract is established and the amount of damages ascertained and decreed that a debt due and payable comes into existence; till then it is nothing more than a mere right to sue for damages and it does not fall within the words of cl. 18. Moreover, Cl. 18 merely provides a mode of recovery and it can have no application where a claim, even though it be for a sum due and payable, is disputed by the contractor and has to be established in a court of law or by arbitration. Clause 18 applies only where a claim is either admitted, or in case of dispute, substantiated by resort to the judicial process. Therefore, when the purchaser has a claim for damages which is disputed by the contractor, the purchaser is not entitled under Clause 18 to recover the amount of its claim for damages by appropriating other sums due to the contractor until the claim for damages is adjudicated upon and culminates in a decree. The appellant in the present case had consequently no right under Clause 18 to appropriate sums due to the respondent under other contracts in satisfaction of its claim for damages against the respondent, when the claim for damages was pending adjudication before the arbitrator and the learned Judge was right in restraining the appellant from doing so by issuing an interim injunction. These were broadly the contentions of the parties under this head of challenge and the question is which of these rival contentions is correct.6. It is true that the words "any claim for the payment of a sum of money" occurring in the opening part of Clause 18 are words of great amplitude, wide enough to cover even a claim for damages, but it is a well settled rule of interpretation applicable alike to instruments as to statutes that the meaning of ordinary words is to be found not so much in strict etymological propriety of language nor even in popular use as in the subject or occasion on which they are used and the object which is intended to be attained. The context and collocation of a particular expression may show that it was not intended to be used in the sense which it ordinarily bears. Language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression. The exact colour and shape of the meaning of any word or expression should both be ascertained by reading it in isolation, but it should be read structurally and in its context, for its meaning may vary with its contextual setting.We must, therefore, read the words any claim for the payment of a sum of money occurring in the opening part of Clause 18 not in isolation but in the context of the whole clause, for the intention of the parties is to be gathered not from one part of the clause or the other but from the clause taken as a whole. It is in the light of this principle of interpretation that we must determine whether the words any claim for the payment of a sum of money refer only to a claim for a sum due and payable which is admitted or in case of dispute, established in a court of law or by arbitration or they also include a claim for damages which is disputed by the contractor.7. The first thing that strikes one on looking at clause 18 is its heading which reads: "Recovery of Sums Due". It is true that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. The heading of Clause 18 clearly suggests that this clause is intended to deal with the subject of recovery of sums due. Now a sum would be due to the purchaser when there is an existing obligation to pay it in praesenti. It would be profitable in this connection to refer to the concept of a debt, for a sum due is the same thing as a debt due.Having discussed the proper interpretation of clause 18, we may now turn to consider what is the real nature of the claim for recovery of which he appellant is seeking to appropriate the sums due to the respondent under other contracts. The claim is admittedly one for damages for breach of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages Section 74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine preestimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contact in terrorem if a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under he English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue forstatement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.
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### 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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as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages Section 74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine preestimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contact in terrorem if a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under he English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages. That is not an actionable claim and this position is made amply clear by the amendment in Section 6(e) of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred. This has always been the law in England and as far back as 1858 we find it stated by Wightman, J., in Jones v. Thompson, (1858) 27 LJQB 234." Ex parte Charles and several other cases decide that the amount of a verdict in an action for unliquidated damages is not a debt till judgment has been signed." It was held in this case that a claim for damages does not become a debt even after the jury has returned a verdict in favour of the plaintiff till the judgment is actually delivered. So also in ODriscoll v. Manchester Insurance Committee, (1915) 3 KB 499. Swinfen Eady, L., J., said in reference to cases where the claim was for unliquidated damages "....... in such cases there is no debt at all until the verdict of the jury is pronounced assessing the damages and judgment is given". The same view has also been taken consistently by different High Court in India. We may mention only a few of the decisions, namely, Jabed Sheikh v. Taher Mallik, 45 Cal WN 519 = (AIR 1941 Cal 639 ); S. Milkha Singh v. M/s. N. K. Gopala Krishna Mudaliar, AIR 1956 Punj 174 Iron and Hardware (India) Co. v. Firm Shamlal and Bros, AIR 1954 Bom 423 . Chagla, C. J., in the last mentioned case, stated the law in these terms:"In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party.As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant."This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.
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0
### Explanation:
but it is a well settled rule of interpretation applicable alike to instruments as to statutes that the meaning of ordinary words is to be found not so much in strict etymological propriety of language nor even in popular use as in the subject or occasion on which they are used and the object which is intended to be attained. The context and collocation of a particular expression may show that it was not intended to be used in the sense which it ordinarily bears. Language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression. The exact colour and shape of the meaning of any word or expression should both be ascertained by reading it in isolation, but it should be read structurally and in its context, for its meaning may vary with its contextual setting.We must, therefore, read the words any claim for the payment of a sum of money occurring in the opening part of Clause 18 not in isolation but in the context of the whole clause, for the intention of the parties is to be gathered not from one part of the clause or the other but from the clause taken as a whole. It is in the light of this principle of interpretation that we must determine whether the words any claim for the payment of a sum of money refer only to a claim for a sum due and payable which is admitted or in case of dispute, established in a court of law or by arbitration or they also include a claim for damages which is disputed by the contractor.7. The first thing that strikes one on looking at clause 18 is its heading which reads: "Recovery of Sums Due". It is true that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. The heading of Clause 18 clearly suggests that this clause is intended to deal with the subject of recovery of sums due. Now a sum would be due to the purchaser when there is an existing obligation to pay it in praesenti. It would be profitable in this connection to refer to the concept of a debt, for a sum due is the same thing as a debt due.Having discussed the proper interpretation of clause 18, we may now turn to consider what is the real nature of the claim for recovery of which he appellant is seeking to appropriate the sums due to the respondent under other contracts. The claim is admittedly one for damages for breach of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages Section 74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine preestimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties; a stipulation in a contact in terrorem if a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under he English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation, nor does the party complaining of the breach become party. The only right which the party aggrieved by the breach of the contract has is the right to sue forstatement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a Court or other adjudicatory authority. We must, therefore, hold that the appellant had no right or authority under Clause 18 to appropriate the amounts of other pending bill of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim injunction restraining the appellant from doing so.
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Laxmanappa Hanumantappa Jamkhandi Vs. The Union Of India And Another
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the business of toddy and liquor vendors. In addition to this, one of the brothers used to run a bus service and dealt in cotton and money-lending also. All the brothers owned extensive properties, both agricultural and non-agricultural. Though prior to the assessment year 1926-27 all the brothers were assessed to income-tax as a Hindu undivided family, since then up to the year 1946 they were assessed separately on account of a partition alleged to have been made between them. In December, 1946, the Income-tax Officer commenced proceedings against them under Section 34 on the ground that the case of partition set up by them was not correct and as a matter of fact there had been no partition between them and they were carrying on business jointly. As a result of these proceedings an assessment under Section 34 was made on the four brothers jointly, treating them as an association of persons, for the year 1942-43. Similar assessment proceedings were taken against them in respect of the years 1940-41, 1941-42 and 1943-44.3. In December, 1947, the Central Government, under the bona fide belief that the petitioners brothers had made huge profits during the war and had evaded tax, made five references to the Income-tax Investigation Commission under Section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947. Reference No. 175 concerned all the brothers as an association of persons while the other four references related to the brothers individually. As a result of the proceedings before the Investigation Commission, the Commission made a report to the Central Government on the 26th of September, 1952, estimating the amount of escaped income at Rs. 16, 79, 203 between the years 1940-41 and 1948-49. In pursuance of this report the Central Government passed an order under Section 8(2) of the Taxation on Income (Investigation Commission) Act directing that the assessment proceedings be taken under the Indian Income-tax Act and Excess Profits Tax Act, 1940, as well as under the Business Profits Tax Act, 1947, against Messrs. Jamkhandi Bros. as an association of persons with a view to assess or reassess the income that had escaped assessment according to the report of the Investigation Commission. In accordance with these orders the Income-tax Officer commenced proceedings against Messrs. Jamkhandi Bros. as an association of persons. On the 30th November, 1953, various assessment orders were passed by the Income-tax Officer assessing the petitioner under the Income-tax Act and the Excess Profits Tax Act. Proceedings were then taken against the petitioner for recovery of the tax assessed by the Income-tax Officer and in those proceedings the properties of the petitioner in the District of Belgaum were attached for payment of the dues and one of his properties comprising of about 12 plots of land was sold by public auction under the provisions of the Bombay Land Revenue Code.4. On the 20th September, 1954, the present application was preferred under the provisions of Article 32 of the Constitution. It has perhaps been made under the impression that the decision of this Court in Suraj Mal Mohtas case has application to the facts and circumstances of this case as well and that relief can be obtained against the assessment orders which have become final by taking proceedings under Article 32 of the Constitution. In the petition it was alleged that the attachment and sale of the petitioners properties was illegal and violates the petitioners fundamental rights under Articles 31(1) and 19(1)(f) of the Constitution.5. It was also alleged that the proceedings before the Income-tax Investigation Commission after the coming into force of the Constitution were illegal as being in contravention of Articles 14 and 20(3) of the Constitution and that in view of the decision of this Court in Suraj Mal Mohtas case proceedings under the Taxation on Income (Investigation Commission) Act, 1947, were discriminatory and that the references made by the Central Government under Section 5(1) are not based on a proper classification. It was prayed that this Court may be pleased to issue a writ in the nature of mandamus and/or certiorari or such other directions as may be appropriate to quash the assessment orders made in pursuance of the order of the Central Government under Section 8(2) of the Taxation on Income (Investigation Commission) Act, 1947, and to restrain the respondents from attaching and selling or interfering in any manner with the properties of the petitioner6. From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh, that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. When this position was put to Mr. Sen, the learned counsel for the petitioner, he very fairly, and, in our opinion, rightly conceded that it was not possible for him to combat this position.7.
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0[ds]3. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh, that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under ArticleIn view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. When this position was put to Mr. Sen, the learned counsel for the petitioner, he very fairly, and, in our opinion, rightly conceded that it was not possible for him to combat this position.
| 0 | 1,195 | 228 |
### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the business of toddy and liquor vendors. In addition to this, one of the brothers used to run a bus service and dealt in cotton and money-lending also. All the brothers owned extensive properties, both agricultural and non-agricultural. Though prior to the assessment year 1926-27 all the brothers were assessed to income-tax as a Hindu undivided family, since then up to the year 1946 they were assessed separately on account of a partition alleged to have been made between them. In December, 1946, the Income-tax Officer commenced proceedings against them under Section 34 on the ground that the case of partition set up by them was not correct and as a matter of fact there had been no partition between them and they were carrying on business jointly. As a result of these proceedings an assessment under Section 34 was made on the four brothers jointly, treating them as an association of persons, for the year 1942-43. Similar assessment proceedings were taken against them in respect of the years 1940-41, 1941-42 and 1943-44.3. In December, 1947, the Central Government, under the bona fide belief that the petitioners brothers had made huge profits during the war and had evaded tax, made five references to the Income-tax Investigation Commission under Section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947. Reference No. 175 concerned all the brothers as an association of persons while the other four references related to the brothers individually. As a result of the proceedings before the Investigation Commission, the Commission made a report to the Central Government on the 26th of September, 1952, estimating the amount of escaped income at Rs. 16, 79, 203 between the years 1940-41 and 1948-49. In pursuance of this report the Central Government passed an order under Section 8(2) of the Taxation on Income (Investigation Commission) Act directing that the assessment proceedings be taken under the Indian Income-tax Act and Excess Profits Tax Act, 1940, as well as under the Business Profits Tax Act, 1947, against Messrs. Jamkhandi Bros. as an association of persons with a view to assess or reassess the income that had escaped assessment according to the report of the Investigation Commission. In accordance with these orders the Income-tax Officer commenced proceedings against Messrs. Jamkhandi Bros. as an association of persons. On the 30th November, 1953, various assessment orders were passed by the Income-tax Officer assessing the petitioner under the Income-tax Act and the Excess Profits Tax Act. Proceedings were then taken against the petitioner for recovery of the tax assessed by the Income-tax Officer and in those proceedings the properties of the petitioner in the District of Belgaum were attached for payment of the dues and one of his properties comprising of about 12 plots of land was sold by public auction under the provisions of the Bombay Land Revenue Code.4. On the 20th September, 1954, the present application was preferred under the provisions of Article 32 of the Constitution. It has perhaps been made under the impression that the decision of this Court in Suraj Mal Mohtas case has application to the facts and circumstances of this case as well and that relief can be obtained against the assessment orders which have become final by taking proceedings under Article 32 of the Constitution. In the petition it was alleged that the attachment and sale of the petitioners properties was illegal and violates the petitioners fundamental rights under Articles 31(1) and 19(1)(f) of the Constitution.5. It was also alleged that the proceedings before the Income-tax Investigation Commission after the coming into force of the Constitution were illegal as being in contravention of Articles 14 and 20(3) of the Constitution and that in view of the decision of this Court in Suraj Mal Mohtas case proceedings under the Taxation on Income (Investigation Commission) Act, 1947, were discriminatory and that the references made by the Central Government under Section 5(1) are not based on a proper classification. It was prayed that this Court may be pleased to issue a writ in the nature of mandamus and/or certiorari or such other directions as may be appropriate to quash the assessment orders made in pursuance of the order of the Central Government under Section 8(2) of the Taxation on Income (Investigation Commission) Act, 1947, and to restrain the respondents from attaching and selling or interfering in any manner with the properties of the petitioner6. From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh, that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. When this position was put to Mr. Sen, the learned counsel for the petitioner, he very fairly, and, in our opinion, rightly conceded that it was not possible for him to combat this position.7.
### Response:
0
### Explanation:
3. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindargarh, that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under ArticleIn view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. When this position was put to Mr. Sen, the learned counsel for the petitioner, he very fairly, and, in our opinion, rightly conceded that it was not possible for him to combat this position.
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Asit Bhattacharjee Vs. M/S. Hanuman Prasad Ojha & Ors
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decision of this Court in Navinchandra N. Majithia v State of Maharashtra and Others [(2000) 7 SCC 640] , wherein this Court held, while considering a contention that the High Court of Bombay was not correct in not entertaining the application for quashing of a complaint petition filed by the complainant in Shillong, went into the merit of the matter and instead of remitting the matter back to the High Court directed: 29. Considering the peculiar fact-situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by the Mumbai Police. 30. This Court arrived at the finding that the High Court should have issued a Writ of Mandamus directing the State of Meghalaya to transfer the investigation to the Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was malafide. 31. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of State of West Bengals having a legal duty in that behalf did not arise. Only in the event an Investigating Officer, having regard to the provisions contained in Section 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the First Information Report to the Police having jurisdiction in the matter. 32. Stricto sensu therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be malafide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever. 33. We may notice that this Court in Mosaraf Hossain Khan v Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] , distinguished Navinchandra N. Majithia (supra), in the following terms:- 33. In this case, the averment made in the writ petition filed by the respondent herein even if given face value and taken to be correct in their entirety would not confer any jurisdiction upon the Kerala High Court. The agreement was entered into within the jurisdiction of the Calcutta High Court. The project for which the supply of stone chips and transportation was being carried out was also within the State of West Bengal. Payments were obviously required to be made within the jurisdiction of the said Court where either the contract had been entered into or where payment was to be made. 34. The appellant did not deny or dispute any of the averments made in the complaint petition. In the writ petition it merely wanted some time to make the payment. It is now well known that the object of the provision of Section 138 of the Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. It was also noticed in a number of decisions of this Court that dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. It was also found that the remedy available in a civil court is a long-drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. [See Goa Plast (P) Ltd. v Chico Ursula DSouza and Monaben Ketanbhai Shah v State of Gujarat. 36. For the purpose of providing the aforementioned ingredients of the offence under Section 138 of the Act, the complainant appellant was required to prove the facts constituting the cause of action therefore none of which arose within the jurisdiction of the Kerala High Court. It is apt to mention that in Prem Chand Vijay Kumar this Court held that cause of action within the meaning of Section 142(b) of the Act can arise only once. 34. It was furthermore held that ordinarily the High Court should not interfere with an order taking cognizance passed by a competent court except in appropriate cases. 35. However, the order passed by the High Court of Judicature at Allahabad has been complied with, as would appear from the counter affidavit filed on behalf of the State of West Bengal. It was necessary, with a view to arrive at the bottom of the matter to conduct investigation into the allegations contained in the complaint petition by a competent investigating officer of the State of Uttar Pradesh. Some offences at various places situated within the State of Uttar Pradesh had been committed. The High Court had not issued any direction as to which Investigating Officer attached to which Police Station of Uttar Pradesh will have jurisdiction in the matter. 36. The direction of the High Court, in that way is vague and indefinite. Investigating Officer attached to one Police Station may feel handicapped in carrying out the investigation within the entire State. In this case, it may be necessary for the Investigating Officer to make investigation even in other States including Rajasthan, Madhya Pradesh, West Bengal etc. for the aforementioned purpose.
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1[ds]17. Appellant herein did not file any complaint petition within the meaning of Section 200 of the Code of Criminal Procedure. It filed an application in terms of sub-section (3) of Section 156 thereof21. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure will have the jurisdiction to make investigation22. The necessary ingredients for proving a criminal offence must exist in a complaint petition. Such ingredients of offence must be referable to the places where the cause of action in regard to commission of offence has arisen. A cause of action as understood in its ordinary parlance may be relevant for exercise of jurisdiction under Clause (2) of Article 226 of the Constitution of India but its definition stricto sensu may not be applicable for the purpose of bringing home a charge of criminal offence. The application filed by the appellant under Section 156(3) of the Code of Criminal Procedure disclosed commission of a large number of offences. The fact that major part of the offences took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the appellant-Company was committed within the jurisdiction of the said Court, the High Court of Allahabad should not have interfered in the matter24. If there had been a fraudulent misrepresentation by some of the respondents at Calcutta and a conspiracy was hatched to commit offences of cheating or misappropriation, indisputably a part of cause of action arose within the jurisdiction of the learned Metropolitan Magistrate25. The complainant has alleged that the respondents have committed offences under Section 120B, 420, 406, 465, 468, 471, 478 and 481 of the Indian Penal Code26. Although referred to in the complaint petition, but as no investigation was sought to be prayed for in respect of the assault on Subodh Singh at Kanpur Railway Station, it may not be necessary for us to address thereupon27. Respondents were appointed as their agents by the appellants. There, thus, existed a relationship of principal and agent.What were the terms and conditions of the contract of agency and how criminal misconducts have been committed while purporting to perform their part of the terms of the said contract of agency, would be a matter of detailed investigation28. Fraudulent representation being one of the essential ingredients in respect of commission of an offence under Section 420 of the Indian Penal Code, a place where such fraudulent misrepresentation has been made would, thus, give rise to a cause of action for prosecuting the accused. Similarly, having regard to the ingredients of an offence under Section 406 where the entrustments were made as also the situs where the offence was completed in the sense that the amount entrusted had not been accounted for by the agent to the principal will also have a nexus so as to enable to the Court concerned to exercise its jurisdiction of taking cognizance. Furthermore, whether the offence forgery of some documents committed or some other criminal misconducts are said to have been committed in furtherance of the commission of the principal offence of cheating and misappropriation wherefor the respondents are said to have entered into a criminal conspiracy; are required to be investigated. The Chief Metropolitan Magistrate, thus, had jurisdiction in the matter in terms of Section 178 read with Section 181(4) of the Code of Criminal Procedure30. This Court arrived at the finding that the High Court should have issued a Writ of Mandamus directing the State of Meghalaya to transfer the investigation to the Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was malafide31. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of State of West Bengals having a legal duty in that behalf did not arise. Only in the event an Investigating Officer, having regard to the provisions contained in Section 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the First Information Report to the Police having jurisdiction in the matter32. Stricto sensu therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be malafide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever35. However, the order passed by the High Court of Judicature at Allahabad has been complied with, as would appear from the counter affidavit filed on behalf of the State of West Bengal. It was necessary, with a view to arrive at the bottom of the matter to conduct investigation into the allegations contained in the complaint petition by a competent investigating officer of the State of Uttar Pradesh. Some offences at various places situated within the State of Uttar Pradesh had been committed. The High Court had not issued any direction as to which Investigating Officer attached to which Police Station of Uttar Pradesh will have jurisdiction in the matter36. The direction of the High Court, in that way is vague and indefinite. Investigating Officer attached to one Police Station may feel handicapped in carrying out the investigation within the entire State. In this case, it may be necessary for the Investigating Officer to make investigation even in other States including Rajasthan, Madhya Pradesh, West Bengal etc. for the aforementioned purpose.
| 1 | 4,931 | 1,117 |
### 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 of this Court in Navinchandra N. Majithia v State of Maharashtra and Others [(2000) 7 SCC 640] , wherein this Court held, while considering a contention that the High Court of Bombay was not correct in not entertaining the application for quashing of a complaint petition filed by the complainant in Shillong, went into the merit of the matter and instead of remitting the matter back to the High Court directed: 29. Considering the peculiar fact-situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by the Mumbai Police. 30. This Court arrived at the finding that the High Court should have issued a Writ of Mandamus directing the State of Meghalaya to transfer the investigation to the Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was malafide. 31. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of State of West Bengals having a legal duty in that behalf did not arise. Only in the event an Investigating Officer, having regard to the provisions contained in Section 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the First Information Report to the Police having jurisdiction in the matter. 32. Stricto sensu therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be malafide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever. 33. We may notice that this Court in Mosaraf Hossain Khan v Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] , distinguished Navinchandra N. Majithia (supra), in the following terms:- 33. In this case, the averment made in the writ petition filed by the respondent herein even if given face value and taken to be correct in their entirety would not confer any jurisdiction upon the Kerala High Court. The agreement was entered into within the jurisdiction of the Calcutta High Court. The project for which the supply of stone chips and transportation was being carried out was also within the State of West Bengal. Payments were obviously required to be made within the jurisdiction of the said Court where either the contract had been entered into or where payment was to be made. 34. The appellant did not deny or dispute any of the averments made in the complaint petition. In the writ petition it merely wanted some time to make the payment. It is now well known that the object of the provision of Section 138 of the Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. It was also noticed in a number of decisions of this Court that dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. It was also found that the remedy available in a civil court is a long-drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. [See Goa Plast (P) Ltd. v Chico Ursula DSouza and Monaben Ketanbhai Shah v State of Gujarat. 36. For the purpose of providing the aforementioned ingredients of the offence under Section 138 of the Act, the complainant appellant was required to prove the facts constituting the cause of action therefore none of which arose within the jurisdiction of the Kerala High Court. It is apt to mention that in Prem Chand Vijay Kumar this Court held that cause of action within the meaning of Section 142(b) of the Act can arise only once. 34. It was furthermore held that ordinarily the High Court should not interfere with an order taking cognizance passed by a competent court except in appropriate cases. 35. However, the order passed by the High Court of Judicature at Allahabad has been complied with, as would appear from the counter affidavit filed on behalf of the State of West Bengal. It was necessary, with a view to arrive at the bottom of the matter to conduct investigation into the allegations contained in the complaint petition by a competent investigating officer of the State of Uttar Pradesh. Some offences at various places situated within the State of Uttar Pradesh had been committed. The High Court had not issued any direction as to which Investigating Officer attached to which Police Station of Uttar Pradesh will have jurisdiction in the matter. 36. The direction of the High Court, in that way is vague and indefinite. Investigating Officer attached to one Police Station may feel handicapped in carrying out the investigation within the entire State. In this case, it may be necessary for the Investigating Officer to make investigation even in other States including Rajasthan, Madhya Pradesh, West Bengal etc. for the aforementioned purpose.
### Response:
1
### Explanation:
Procedure. It filed an application in terms of sub-section (3) of Section 156 thereof21. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen, the police station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure will have the jurisdiction to make investigation22. The necessary ingredients for proving a criminal offence must exist in a complaint petition. Such ingredients of offence must be referable to the places where the cause of action in regard to commission of offence has arisen. A cause of action as understood in its ordinary parlance may be relevant for exercise of jurisdiction under Clause (2) of Article 226 of the Constitution of India but its definition stricto sensu may not be applicable for the purpose of bringing home a charge of criminal offence. The application filed by the appellant under Section 156(3) of the Code of Criminal Procedure disclosed commission of a large number of offences. The fact that major part of the offences took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the appellant-Company was committed within the jurisdiction of the said Court, the High Court of Allahabad should not have interfered in the matter24. If there had been a fraudulent misrepresentation by some of the respondents at Calcutta and a conspiracy was hatched to commit offences of cheating or misappropriation, indisputably a part of cause of action arose within the jurisdiction of the learned Metropolitan Magistrate25. The complainant has alleged that the respondents have committed offences under Section 120B, 420, 406, 465, 468, 471, 478 and 481 of the Indian Penal Code26. Although referred to in the complaint petition, but as no investigation was sought to be prayed for in respect of the assault on Subodh Singh at Kanpur Railway Station, it may not be necessary for us to address thereupon27. Respondents were appointed as their agents by the appellants. There, thus, existed a relationship of principal and agent.What were the terms and conditions of the contract of agency and how criminal misconducts have been committed while purporting to perform their part of the terms of the said contract of agency, would be a matter of detailed investigation28. Fraudulent representation being one of the essential ingredients in respect of commission of an offence under Section 420 of the Indian Penal Code, a place where such fraudulent misrepresentation has been made would, thus, give rise to a cause of action for prosecuting the accused. Similarly, having regard to the ingredients of an offence under Section 406 where the entrustments were made as also the situs where the offence was completed in the sense that the amount entrusted had not been accounted for by the agent to the principal will also have a nexus so as to enable to the Court concerned to exercise its jurisdiction of taking cognizance. Furthermore, whether the offence forgery of some documents committed or some other criminal misconducts are said to have been committed in furtherance of the commission of the principal offence of cheating and misappropriation wherefor the respondents are said to have entered into a criminal conspiracy; are required to be investigated. The Chief Metropolitan Magistrate, thus, had jurisdiction in the matter in terms of Section 178 read with Section 181(4) of the Code of Criminal Procedure30. This Court arrived at the finding that the High Court should have issued a Writ of Mandamus directing the State of Meghalaya to transfer the investigation to the Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was malafide31. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of State of West Bengals having a legal duty in that behalf did not arise. Only in the event an Investigating Officer, having regard to the provisions contained in Section 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the First Information Report to the Police having jurisdiction in the matter32. Stricto sensu therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be malafide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever35. However, the order passed by the High Court of Judicature at Allahabad has been complied with, as would appear from the counter affidavit filed on behalf of the State of West Bengal. It was necessary, with a view to arrive at the bottom of the matter to conduct investigation into the allegations contained in the complaint petition by a competent investigating officer of the State of Uttar Pradesh. Some offences at various places situated within the State of Uttar Pradesh had been committed. The High Court had not issued any direction as to which Investigating Officer attached to which Police Station of Uttar Pradesh will have jurisdiction in the matter36. The direction of the High Court, in that way is vague and indefinite. Investigating Officer attached to one Police Station may feel handicapped in carrying out the investigation within the entire State. In this case, it may be necessary for the Investigating Officer to make investigation even in other States including Rajasthan, Madhya Pradesh, West Bengal etc. for the aforementioned purpose.
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Commissioner Of Income Tax, Madras Vs. S. Chenniappa Mudaliar, Madurai
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by the party or not. This provision, it was held, did not make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there was hardly much discussion and the Allahabad decision was simply followed. In (1960) 38 ITR 1 (Punj) the points raised were different and arose in a petition filed under Articles 226 and 227 of the Constitution. It does not appear that the validity of Rule 24 was canvassed.6. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it as to dispose of an appeal by making such orders as it things fit on the merits. It follows from the language of Section 33 (4) and in particular the use of the word "thereon that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central Bombay, 63 ITR 232 = (AIR 1967 SC 455 ) the word "thereon" in Section 33 (4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33 (4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66 so far as the questions of fact are concerned, the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33 (4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as we as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S. R. Das, J., (as he then was) in Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar, 23 ITR 180 = (AIR 1953 SC l18) that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33 (4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 42 ITR 589 = (AIR 1961 SC 1633 ) indicating the necessity of the disposal o the appeal on the merits by the Appellate Tribunal. This is how the learned Judge had put the matter in the form of interrogation:"How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought?"Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33 (4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot shortcircuit the same by dismissing it for default of appearance.7. Now although Rule 24 provides for dismissal of an appeal for the failure of appellant, to appear, the Rules at the material time did not contain any prevision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal (vide 22 ITR 104 = (AIR 1952 All 857 ) and (1960) 38 ITR 1 (Punj)). There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code, (Mulla, Civil Procedure Code, Vol. II, pp. 1583, 1584). It is unnecessary to resolve that conflict in the present case.It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative.
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0[ds]5. Now Rule 24 cannot be said to be ultra vires sub-section (8) of Section 5A but what has to be essentially seen is whether it is repugnant to the provisions of Section 33 (4).The reasoning which prevailed with the Special Bench of the High Court in the present case, was that under Section 33 (4 ) the Tribunal is bound to dispose of the appeal on the merits, no matter whether the appellant is absent or not. Reference in particular was made to the remedies, namely, the provisions contained in Section 66 relating to reference on question of law and the further right of appeal to this court under Section 66A if the case is certified to be fit one for appeal. The Special Bench found it difficult to accept that by exercising the power to dismiss an appeal for default of appearance under Rule 24, these remedies which were open to an aggrieved party could be defeated or rendered infructuous. The fact that there was no provision in Rule 24 or any other Rule for restoring an appeal once it was dismissed for default was also considered weighty in the matter. The cases in which the validity of Rule 24 has been upheld may now be considered. In 22 ITR 104 = (AIR 1952 All 857 ) the discussion on the question of validity of the rule of somewhat meagre. It was no doubt said that Rule 24 did not in any way come into conflict with Sec. 33 (4) but hardly any reasons were given in respect of that view. It was recognised that there was no specific rule empowering the Tribunal to restore an appeal dismissed for default of appearance but it was observed that the Tribunal would have inherent jurisdiction to set aside such an order if satisfied with regard to the existence of a sufficient cause. According to 27 ITR 164 = (AIR 1955 Mad 39 ) a very wide power was given to the Appellate Tribunal by Section 33 (4) and it could pass any order which the circumstances of the case required. It was immaterial whether the opportunity of heing heard had been availed of by the party or not. This provision, it was held, did not make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there was hardly much discussion and the Allahabad decision was simply followed. In (1960) 38 ITR 1 (Punj) the points raised were different and arose in a petition filed under Articles 226 and 227 of the Constitution. It does not appear that the validity of Rule 24 was canvassed.6. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it as to dispose of an appeal by making such orders as it things fit on the merits. It follows from the language of Section 33 (4) and in particular the use of the word "thereon that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central Bombay, 63 ITR 232 = (AIR 1967 SC 455 ) the word "thereon" in Section 33 (4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33 (4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66 so far as the questions of fact are concerned, the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33 (4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as we as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S. R. Das, J., (as he then was) in Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar, 23 ITR 180 = (AIR 1953 SC l18) that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33 (4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 42 ITR 589 = (AIR 1961 SC 1633 ) indicating the necessity of the disposal o the appeal on the merits by the Appellate Tribunal. This is how the learned Judge had put the matter in the form ofcan it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should belooking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33 (4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot shortcircuit the same by dismissing it for default ofNow although Rule 24 provides for dismissal of an appeal for the failure of appellant, to appear, the Rules at the material time did not contain any prevision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal (vide 22 ITR 104 = (AIR 1952 All 857 ) and (1960) 38 ITR 1 (Punj)). There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code, (Mulla, Civil Procedure Code, Vol. II, pp. 1583, 1584). It is unnecessary to resolve that conflict in the present case.It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in theis nothing, either, express or implied, in the language of Section 33 (4) from which it could be held that the order of the Tribunal in an appeal must always be made on theSection 5A of the Act appears in Chapter 2A relating to the Appellate Tribunal.(1) to (4) provide for the constitution of the Tribunal and the appointment of its President and Members.(5) to (7) provide for the manner in which the benches of the Tribunal have to function.
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### 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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by the party or not. This provision, it was held, did not make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there was hardly much discussion and the Allahabad decision was simply followed. In (1960) 38 ITR 1 (Punj) the points raised were different and arose in a petition filed under Articles 226 and 227 of the Constitution. It does not appear that the validity of Rule 24 was canvassed.6. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it as to dispose of an appeal by making such orders as it things fit on the merits. It follows from the language of Section 33 (4) and in particular the use of the word "thereon that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central Bombay, 63 ITR 232 = (AIR 1967 SC 455 ) the word "thereon" in Section 33 (4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33 (4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66 so far as the questions of fact are concerned, the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33 (4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as we as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S. R. Das, J., (as he then was) in Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar, 23 ITR 180 = (AIR 1953 SC l18) that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33 (4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 42 ITR 589 = (AIR 1961 SC 1633 ) indicating the necessity of the disposal o the appeal on the merits by the Appellate Tribunal. This is how the learned Judge had put the matter in the form of interrogation:"How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought?"Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33 (4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot shortcircuit the same by dismissing it for default of appearance.7. Now although Rule 24 provides for dismissal of an appeal for the failure of appellant, to appear, the Rules at the material time did not contain any prevision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal (vide 22 ITR 104 = (AIR 1952 All 857 ) and (1960) 38 ITR 1 (Punj)). There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code, (Mulla, Civil Procedure Code, Vol. II, pp. 1583, 1584). It is unnecessary to resolve that conflict in the present case.It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative.
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provisions of the Act relating to the Appellate Tribunal apparently is that it as to dispose of an appeal by making such orders as it things fit on the merits. It follows from the language of Section 33 (4) and in particular the use of the word "thereon that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax, Central Bombay, 63 ITR 232 = (AIR 1967 SC 455 ) the word "thereon" in Section 33 (4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33 (4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66 so far as the questions of fact are concerned, the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33 (4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as we as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S. R. Das, J., (as he then was) in Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettiar, 23 ITR 180 = (AIR 1953 SC l18) that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33 (4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., 42 ITR 589 = (AIR 1961 SC 1633 ) indicating the necessity of the disposal o the appeal on the merits by the Appellate Tribunal. This is how the learned Judge had put the matter in the form ofcan it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should belooking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33 (4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot shortcircuit the same by dismissing it for default ofNow although Rule 24 provides for dismissal of an appeal for the failure of appellant, to appear, the Rules at the material time did not contain any prevision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal (vide 22 ITR 104 = (AIR 1952 All 857 ) and (1960) 38 ITR 1 (Punj)). There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code, (Mulla, Civil Procedure Code, Vol. II, pp. 1583, 1584). It is unnecessary to resolve that conflict in the present case.It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in theis nothing, either, express or implied, in the language of Section 33 (4) from which it could be held that the order of the Tribunal in an appeal must always be made on theSection 5A of the Act appears in Chapter 2A relating to the Appellate Tribunal.(1) to (4) provide for the constitution of the Tribunal and the appointment of its President and Members.(5) to (7) provide for the manner in which the benches of the Tribunal have to function.
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M/S.Dale & Carrington Invt.P.Ltd. Vs. P.K. Prathapan
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only at the time of institution of proceeding. In Jawahar Singh Bikram Singh vs. Sharda Talwar (1974) 44 Company Cases 552, a Division Bench of the Delhi High Court held that for the purposes of petition under Sections 397/398 it was only necessary that members who were already constructively before the court should continue to proceedings. It is a case in which the petitioner who had filed a petition died during the pendency of the petition. While filing the petition he had obtained consent of requisite number of shareholders of the company, among them his wife was also there. The Court further observed that since wife of the petitioner was already constructively a petitioner in the original proceedings, by virtue of her having given a consent in writing, she was entitled to be transposed as petitioner in place of her husband. 40. It is to be further noted that the entire scheme regarding purchase of shares in the name of mother of Prathapan was suggested by Ramanujam himself. He saw to it that the shares were transferred by the company in the name of Prathapan and his wife. The company has recorded the transfer and corrected its Register of Members in this behalf which, in fact, led Ramanujam to file a petition for rectification of the Register of Members as a counterblast to the petition filed by Prathapan under Sections 397/398 of the Companies Act. It is not open to Ramanujam now to raise the question of FERA violation, more particularly in view of his having recorded the transfer of shares in the name of Prathapan and his wife Pushpa in the records of the Company. This also answers the objection regarding locus standi of Prathapan and his wife to file the Sections 397/398 petition before the Company Law Board. Since they were registered as shareholders of the company on the date of filing of the petition and they held the requisite number of shares in the company, they could maintain the petition.41. We, therefore, find no merit in the contention that the petition under Sections 397/398 of the Companies Act, filed by the Prathapan and his wife before the Company Law Board was not maintainable. Issue 3 Scope of power of High Court in appeal under Section 10F of the Companies Act. 42. We have now to deal with the question of scope of appeal filed under Section 10(F) of the Companies Act by Prathapan in the High Court. 43. Section 10F refers to an appeal being filed on the question of law. The learned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be set aside. We do not agree with the submission made by the learned counsel for the appellants. It is settled law that if a finding of fact is perverse and is based on no evidence, it can be set aside in appeal even though the appeal is permissible only on the question of law. The perversity of the finding itself becomes a question of law. In the present case we have demonstrated that the judgment of the Company Law Board was given in a very cursory and cavalier manner. The Board has not gone into real issues, which were germane for the decision of the controversy involved in the case. The High Court has rightly gone into the depth of the matter. As already stated the controversy in the case revolved around alleged allotment of additional shares in favour of Ramanujam and whether allotment of additional shares was an act of oppression on his part. On the issue of oppression of finding of the Company Law Board was in favour of Prathapan i.e. his impugned act was held to be an act of oppression. The said finding has been maintained by the High Court although it has given stronger reasons for the same. 44. We find no merit in the argument that the High Court exceeded its jurisdiction under Section 10F of the Companies Act while deciding the appeal. Issue 4: Relief 45. On the question of relief, the learned counsel for the parties referred to decisions in support of their respective stands. We do not consider it necessary to refer to these decisions because relief depends on facts of a particular case. We have seen the facts of the present case which to our mind are so manifestly against Ramanujam that two opinions are not possible on the aspect of relief. The only relief that has to be granted in the present case is to undo the advantage gained by Ramanujam through his manipulations and fraud. The allotment of all the additional shares in favour of Ramanujam has to be set aside. In our view, the High Court was fully justified in granting the relief of setting aside the impugned allotments of the additional shares in favour of Ramanujam. The approach of the Company Law Board was totally erroneous in as much as after having found that there was oppression on the part of Ramanujam, he was still allowed to take advantage of his own wrong in as much as he was given the option to buy Prathapans shares and that too not for a proper price. In our view the Company Law Board was wrong in allowing purchase of shares of Prathapan and wife by Ramanujam. Such an order amounts to rewarding the wrong doer and penalizing the oppressed party. In the circumstances of this case asking the oppressed to sell his shares to the oppressor not only fails to redress the wrong done to the oppressed, it also results in heavy monetary loss to him. The relief granted by the High Court was a proper relief in the facts of the case.
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0[ds]A doubt has been cast about whether the alleged meetings in which additional equity shares were allotted to Ramanujam were held att is the Balance Sheet for the year ending 31st March, 1994 which for the first time shows an advance of Rs.6,86,500/towards share capital pending allotment. Nothing has been placed on record to show that during the financial yeari.e. 1st April, 1993 to 31st March, 1994 suddenly need had arisen for a substantial investment. The company was running a hotel, the property whereof was owned by the company. No particular reason for making a major investment has been shown. Nothing has been shown as to how the amount of Rs.6,86,500/was utilized. It appears that Ramanujam who was managing the affairs of the company single handedly, realized that the company had turned around and the Hotel property had appreciated in terms of its market value. He started working on a strategy to get controlling shares in the company. It was in furtherance of this objective that Ramanujam managed to show the entry regarding advance against shares in the Balance Sheet as on 31st March, 1994. For this amount, he allotted equity shares to himself to gain control of the company. In these facts it is difficult for us to appreciate that the additional funds were required by the company. In our view the finding of the High Court that no funds were needed by the company is fully justified. The only purpose was to allot additional shares in the company to himself to gain control of the company and to achieve this objective, the books of the company appear to have been manipulated. The High Court was right in holding that the entire manipulation of records of the company by Ramanujam was an act of fraud on hisagents of the company they must act within the scope of their authority and must disclose that they are acting on behalf of the company. The fiduciary capacity within which the Directors have to act enjoins upon them a duty to act on behalf of a company with utmost good faith, utmost care and skill and due diligence and in the interest of the company they represent. They have a duty to make full and honest disclose to the shareholders regarding all important matters relating to the company. It follows that in the matter of issue of additional share, the directors owe a fiduciary duty to issue shares for a proper purpose. This duty is owned by them to the shareholders of the company. Therefore, even though Section 81 of the Companies Act which contains certain requirements in the matter of issue of further share capital by a company does not apply to private limited companies, the directors in a private limited company are expected to make a disclosure to the shareholders of such a company when further shares are being issued. This requirement flows from their duty to act in good faith and make full disclosure to the shareholders regarding affairs of a company. The acts of directors in a private limited company are required to be tested on a much finer scale in order to rule out any misuse of power for personal gains or ulterior motives.of Section 81 of the Companies Act in case of private limited companies casts a heavier burden on its directors. Private limited companies are normally closely held i.e. the share capital is held within members of a family or within a close knit group of friends. This brings in considerations akin to those applied in cases of partnership where the partners owe a duty to act with utmost good faith towards each other.of Section 81 of the Act to private companies does not mean that the directors have absolute freedom in the matter of management of affairs of the company.17. In the present case Article 4(iii) of the Articles of Association prohibits any invitation to the public for subscription of shares or debentures of the company. The intention from this appears to be that the share capital of the company remains within a close knit group. Therefore, if the directors fail to act in the manner prescribed above they can in the sense indicated by us earlier be held liable for breach of trust for misapplying funds of the company and for misappropriating itsour view, this argument has no merit because the facts of the case do not support, the argument. Firstly, the Articles of Association require such decisions regarding issue of further share capital to be taken in a meeting of the Board of Directors and we have found that the alleged meeting of the Board of Directors in which the additional shares are purported to have been issued in favour of Ramanujam was sham. Secondly, assuming for the sake of argument that meeting of Board of Directors did take place the manner in which the shares were issued in favour of Ramanujam without informing other shareholders about it and without offering them to any other shareholder, the action was totally mala fide and the sole object of Ramanujam in this was to gain control of the company by becoming a majority shareholder. This was clearly an act of oppression on the part of Ramanujam towards the other shareholder who has been reduced to a minority shareholder as a result of this act. Such allotments of shares have to be set aside.19. On the role of Directors, the law is wella petition filed under Sections 397 and 398 of the Companies Act, 1956, acts of Khaund were found to be by way of oppression and mismanagement within the meaning of Sections 397 and 398 of the Companies Act. Allotment of 100 equity shares by the company to Khaund at a meeting of the Board of Directors said to have been held on 14th January, 1971 and held to be illegal. The Board of Directors of the company was superseded and a special officer was appointed to carry on management of the company with the advice of Barooah, Khaund and a representative of labour union. There were several other directions issued by the court which are not necessary to be mentioned here. The Division Bench considered in detail the relevant legal position. Without using the phrase proper purpose doctrine the principle enunciated therein, was applied.Further, it was held that if a member who holds the majority of shares in a company is reduced to the position of minority shareholder in the company by an act of the company or by its Board of Directors malafide, the said act must ordinarily be considered to be an act of oppression to the said member. The member who holds the majority of shares in the company is entitled by virtue of his majority to control, manage and run the affairs of the company. This is a benefit or advantage which the member enjoys and is entitled to enjoy in accordance with the provisions of company law in the matter of administration of the affairs of the company by electing his own men to the Board of Directors of theof right to issue shares to one director may technically be there, but the question whether the right has been exercised bona fide and in the interests of the company has to be considered in facts of each case and if it is found that it is not, so, such allotment is liable to be set aside.In the present case we are concerned with the propriety of issue of additional share capital by the Managing Director in his own favour. The facts of the case do not pose any difficulty particularly for the reason that the Managing Director has neither placed on record anything to justify issue of further share capital nor it has been shown that proper procedure was followed in allotting the additional share capital. Conclusion is inevitable that neither the allotment of additional shares in favour of Ramanujam was bonafide nor it was in the interest of the company nor a proper and legal procedure was followed to make the allotment. The motive for the allotment was malafide, the only motive being to gain control of the company. Therefore, in our view, the entire allotment of shares to Ramanujam has to be set aside.37. Even the Company Law Board found that the allotment of additional shares by Ramanujam to himself was an act of oppression on his part. The Company Law Board drew this conclusion solely for the reason that no offer had been made to the majority shareholders regarding issue of further share capital. The High Court accepted the finding of oppression. However, it placed it on a much broader base by taking into consideration various other factors. The High Courts finding is based on a much stronger footing. In fact, the High Court has gone on to conclude that Ramanujam has played a fraud on the minority shareholders by manipulating the allotment of shares in his favour. We find no reason to differ with the finding of the Highis not open to Ramanujam now to raise the question of FERA violation, more particularly in view of his having recorded the transfer of shares in the name of Prathapan and his wife Pushpa in the records of the Company. This also answers the objection regarding locus standi of Prathapan and his wife to file the Sections 397/398 petition before the Company Law Board. Since they were registered as shareholders of the company on the date of filing of the petition and they held the requisite number of shares in the company, they could maintain the petition.41. We, therefore, find no merit in the contention that the petition under Sections 397/398 of the Companies Act, filed by the Prathapan and his wife before the Company Law Board was notlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be setlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be setlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be set
| 0 | 10,147 | 1,914 |
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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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only at the time of institution of proceeding. In Jawahar Singh Bikram Singh vs. Sharda Talwar (1974) 44 Company Cases 552, a Division Bench of the Delhi High Court held that for the purposes of petition under Sections 397/398 it was only necessary that members who were already constructively before the court should continue to proceedings. It is a case in which the petitioner who had filed a petition died during the pendency of the petition. While filing the petition he had obtained consent of requisite number of shareholders of the company, among them his wife was also there. The Court further observed that since wife of the petitioner was already constructively a petitioner in the original proceedings, by virtue of her having given a consent in writing, she was entitled to be transposed as petitioner in place of her husband. 40. It is to be further noted that the entire scheme regarding purchase of shares in the name of mother of Prathapan was suggested by Ramanujam himself. He saw to it that the shares were transferred by the company in the name of Prathapan and his wife. The company has recorded the transfer and corrected its Register of Members in this behalf which, in fact, led Ramanujam to file a petition for rectification of the Register of Members as a counterblast to the petition filed by Prathapan under Sections 397/398 of the Companies Act. It is not open to Ramanujam now to raise the question of FERA violation, more particularly in view of his having recorded the transfer of shares in the name of Prathapan and his wife Pushpa in the records of the Company. This also answers the objection regarding locus standi of Prathapan and his wife to file the Sections 397/398 petition before the Company Law Board. Since they were registered as shareholders of the company on the date of filing of the petition and they held the requisite number of shares in the company, they could maintain the petition.41. We, therefore, find no merit in the contention that the petition under Sections 397/398 of the Companies Act, filed by the Prathapan and his wife before the Company Law Board was not maintainable. Issue 3 Scope of power of High Court in appeal under Section 10F of the Companies Act. 42. We have now to deal with the question of scope of appeal filed under Section 10(F) of the Companies Act by Prathapan in the High Court. 43. Section 10F refers to an appeal being filed on the question of law. The learned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be set aside. We do not agree with the submission made by the learned counsel for the appellants. It is settled law that if a finding of fact is perverse and is based on no evidence, it can be set aside in appeal even though the appeal is permissible only on the question of law. The perversity of the finding itself becomes a question of law. In the present case we have demonstrated that the judgment of the Company Law Board was given in a very cursory and cavalier manner. The Board has not gone into real issues, which were germane for the decision of the controversy involved in the case. The High Court has rightly gone into the depth of the matter. As already stated the controversy in the case revolved around alleged allotment of additional shares in favour of Ramanujam and whether allotment of additional shares was an act of oppression on his part. On the issue of oppression of finding of the Company Law Board was in favour of Prathapan i.e. his impugned act was held to be an act of oppression. The said finding has been maintained by the High Court although it has given stronger reasons for the same. 44. We find no merit in the argument that the High Court exceeded its jurisdiction under Section 10F of the Companies Act while deciding the appeal. Issue 4: Relief 45. On the question of relief, the learned counsel for the parties referred to decisions in support of their respective stands. We do not consider it necessary to refer to these decisions because relief depends on facts of a particular case. We have seen the facts of the present case which to our mind are so manifestly against Ramanujam that two opinions are not possible on the aspect of relief. The only relief that has to be granted in the present case is to undo the advantage gained by Ramanujam through his manipulations and fraud. The allotment of all the additional shares in favour of Ramanujam has to be set aside. In our view, the High Court was fully justified in granting the relief of setting aside the impugned allotments of the additional shares in favour of Ramanujam. The approach of the Company Law Board was totally erroneous in as much as after having found that there was oppression on the part of Ramanujam, he was still allowed to take advantage of his own wrong in as much as he was given the option to buy Prathapans shares and that too not for a proper price. In our view the Company Law Board was wrong in allowing purchase of shares of Prathapan and wife by Ramanujam. Such an order amounts to rewarding the wrong doer and penalizing the oppressed party. In the circumstances of this case asking the oppressed to sell his shares to the oppressor not only fails to redress the wrong done to the oppressed, it also results in heavy monetary loss to him. The relief granted by the High Court was a proper relief in the facts of the case.
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shares were issued in favour of Ramanujam without informing other shareholders about it and without offering them to any other shareholder, the action was totally mala fide and the sole object of Ramanujam in this was to gain control of the company by becoming a majority shareholder. This was clearly an act of oppression on the part of Ramanujam towards the other shareholder who has been reduced to a minority shareholder as a result of this act. Such allotments of shares have to be set aside.19. On the role of Directors, the law is wella petition filed under Sections 397 and 398 of the Companies Act, 1956, acts of Khaund were found to be by way of oppression and mismanagement within the meaning of Sections 397 and 398 of the Companies Act. Allotment of 100 equity shares by the company to Khaund at a meeting of the Board of Directors said to have been held on 14th January, 1971 and held to be illegal. The Board of Directors of the company was superseded and a special officer was appointed to carry on management of the company with the advice of Barooah, Khaund and a representative of labour union. There were several other directions issued by the court which are not necessary to be mentioned here. The Division Bench considered in detail the relevant legal position. Without using the phrase proper purpose doctrine the principle enunciated therein, was applied.Further, it was held that if a member who holds the majority of shares in a company is reduced to the position of minority shareholder in the company by an act of the company or by its Board of Directors malafide, the said act must ordinarily be considered to be an act of oppression to the said member. The member who holds the majority of shares in the company is entitled by virtue of his majority to control, manage and run the affairs of the company. This is a benefit or advantage which the member enjoys and is entitled to enjoy in accordance with the provisions of company law in the matter of administration of the affairs of the company by electing his own men to the Board of Directors of theof right to issue shares to one director may technically be there, but the question whether the right has been exercised bona fide and in the interests of the company has to be considered in facts of each case and if it is found that it is not, so, such allotment is liable to be set aside.In the present case we are concerned with the propriety of issue of additional share capital by the Managing Director in his own favour. The facts of the case do not pose any difficulty particularly for the reason that the Managing Director has neither placed on record anything to justify issue of further share capital nor it has been shown that proper procedure was followed in allotting the additional share capital. Conclusion is inevitable that neither the allotment of additional shares in favour of Ramanujam was bonafide nor it was in the interest of the company nor a proper and legal procedure was followed to make the allotment. The motive for the allotment was malafide, the only motive being to gain control of the company. Therefore, in our view, the entire allotment of shares to Ramanujam has to be set aside.37. Even the Company Law Board found that the allotment of additional shares by Ramanujam to himself was an act of oppression on his part. The Company Law Board drew this conclusion solely for the reason that no offer had been made to the majority shareholders regarding issue of further share capital. The High Court accepted the finding of oppression. However, it placed it on a much broader base by taking into consideration various other factors. The High Courts finding is based on a much stronger footing. In fact, the High Court has gone on to conclude that Ramanujam has played a fraud on the minority shareholders by manipulating the allotment of shares in his favour. We find no reason to differ with the finding of the Highis not open to Ramanujam now to raise the question of FERA violation, more particularly in view of his having recorded the transfer of shares in the name of Prathapan and his wife Pushpa in the records of the Company. This also answers the objection regarding locus standi of Prathapan and his wife to file the Sections 397/398 petition before the Company Law Board. Since they were registered as shareholders of the company on the date of filing of the petition and they held the requisite number of shares in the company, they could maintain the petition.41. We, therefore, find no merit in the contention that the petition under Sections 397/398 of the Companies Act, filed by the Prathapan and his wife before the Company Law Board was notlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be setlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be setlearned counsel for the appellant argued that the High Court could not disturb the findings of fact arrived at by the Company Law Board. It was further argued that the High Court has recorded its own finding on certain issues which the High Court could not go into and therefore the judgment of the High Court is liable to be set
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Rohtas Industries Limited and Another Vs. Rohtas Industries Staff Union and Others
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must be by a remedy provided uno flatu in the statute. To sum up, in the language of the Premier Automobiles Ltd. (Supra): If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only , remedy available to the suitor is to get an adjudication under the Act. 29. Since the Act which creates rights and remedies has to be considered as one homogeneous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face on its face we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex-facie legal error. 30. It was argued, and with force in our view, that the question of compensation by workers to the management was wholly extraneous to the Act and therefore, outside the jurisdiction of a voluntary reference of industrial dispute under Section 10 A. While we are not called upon to pronounce conclusively on the contention, since we have ex pressed our concurrence with the High Court on other grounds, we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act, if we may silhouette it, is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an industrial dispute. Strikes and lock-outs stem from such disputes. The machinery for settlement of such disputes at various stages is provided for by the act. The statutory imprimatur is given to settlement and awards, and norms of discipline during the pendency of proceedings are set down in the Act. The proscriptions stipulated, as for example the prohibition of a strike, are followed by penalties, if breached. Summary procedures for adjudication as to whether conditions of service etc., of employees have been changed during the s pendency of proceedings, special provision for recovery of money due to workers from employers and other related regulations, are also written into the Act. Against this backdrop, we have to see whether a claim by an employer from his workmen of compensation . consequent on any conduct of theirs, comes within the purview of the Act. Suffice it to say that a reference to arbitration under Section 10 A is restricted to existing or apprehended industrial disputes. Be it noted that we are not concerned with a private arbitration but a statutory one governed by the Industrial Disputes Act, deriving its validity, enforceability and protective mantle during the pendency of the proceedings, from 10 A. No industrial dispute, no valid arbitral reference. Once we grasp this truth, the rest of the logic is simple. What is the industrial dispute in the present case? Everything that overflows such disputes spills into areas where the arbitrator deriving authority under Section 10 A has no jurisdiction. The consent of the parties cannot create arbitral jurisdiction under the Act. In this perspective, the claim for compensation can be a lawful subject for arbitration only if it can be accommodated by the definition of industrial dispute in Section 2 (k) . Undoubtedly this expression must receive a wide collnotation, calculated as it is to produce industrial peace. Indeed, the legislation substitutes for free bargaining between the parties a binding award; but what disputes or differences fall within the scope of the Act? This matter fell for the consideration of the Federal Court in Western India Automobile Association([1949] I L. L. J. 245.). Without launching on a long discussion, we may state that compensation for loss of business is not a dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. We are unable to imagine a tort liability or compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen. 31. In this context, we are strengthened in our conclusion by the provisions of Section 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award, but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen.- And indeed, it may be a little startling to find such a provision, having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre-Independence statutes in the interpretative process. As yet, and hopefully, claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However, as earlier stated, we do not pronounce finally as it is not necessary. 32. There was argument at the bar that the High Court was in error in relying on s. 18 of the Trade Unions Act, 1926 to rebuff the claim for compensation. We have listened to the arguments of Shri B.C. Ghosh in support of the view of the High Court, understood on a wider basis. Nevertheless, we do not wish to rest our judgment on that ground. Counsel for the appellants cited some decisions to show that an award falling outside the orbit of the Indian Arbitration Act can be enforced by action in court. We do not think the problem so posed arises in the instant case.
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0[ds]9. (1)-(a) &(b)The expansive and extraordinary power of the High Courts under Art. 226 as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other) purpose even one for which another remedy may exist. The amendment to Art. 226 in 1963 inserting Art. 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. But it is one thing to affirm the jurisdiction, an other to authorise its free exercise like a bull in a China shop. This Court has spelt out wise and clear restraints on the use of this extra-ordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the peoples sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Art. 226, although this power must be kept in severely judicious leash.10. Many rulings of the High Courts, pro and con, were cited before us to show that an award under s. 10A of the Act is insulated from interference under Art. 226 but we respectfully agree with the observations of Gajendragadkar J., (as he then was) in Engineering Mazdoor Sabha v. Hind Cycles Ltd([1963] Supp. I S.C.R. 625.) which nail the argument against the existence of jurisdiction. The learned Judge clarified at p. 640:Article 226 under which a writ of certiorari can be issued in an appropriate case, is, in a sense, wider than Art. 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of Courts or Tribunals. Under Art. 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore even if the arbitrator appointed under section 10A is not a Tribunal under Art. 136 in a proper cases, a writ may lie against his award under Art. 226. (p. 640)11. We agree that the position of an arbitrator under s. 10A of the Act (as it then stood) vis a vis Art. 227 might have been different. Today, however, such an arbitrator has power to bind even those who are not parties to the reference or agreement and the whole exercise under s. 10A as well as the source of the force of the award on publication derive from the statute. It is legitimate to regard such an arbitrator now as part of the methodology of the sovereigns dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review. This observation made en passant by us is induced by the discussion at the bar and turns on the amendments to s. 10A and cognate provisions like s. 23, by Act XXXVI of 1964.That depends. We will examine the grounds on which the High Court has, in the present case, excised a portion of the award as illegal, keeping in mind the settled rules governing judicial review of private arbitrators awards. Suffice it to say, an award under s. 10A is not only not invulnerable but more sensitively susceptible to the writ lancet being a quasi-statutory bodys decision. Admittedly, such an award can be upset if an apparent error of law stains its face. The distinction, in this area, between a private award and one under s. 10A is fine, but real. However it makes slight practical difference in the present case; in other cases it may. The further grounds for invalidating an award need not be considered as enough unto the day is the evil thereofThus, we arrive at a consideration of the appellants second submission, perhaps the most significant in the case, that the High Court had no legitimate justification to jettison the compensation portion of the award. Even here, we may state that counsel for the appellants, right at the outset, mollified possible judicial apprehensions springing from striking workers being held liable for loss of managements profits during the strike period by the assurance that his clients were inclined to abandon realisation of the entire compensation, even if this Court up held that part of the award in reversal of the judgment of the High Court a generous realism. He fought a battle for principle, not pecunia. We record this welcome fact and proceed on that footing.16. Let us put the proposition more expressively and explicitly. What is important is a question of law arising on the face of the facts found and F its resolution ex facie of sub silentio. The arbitrator may not state the law as such. Even then such cute silence confers no greater or subtler immunity on the award than plain speech. The need for a speaking order, where considerable numbers are affected in their substantial rights, may well be a facet of natural justice or fair procedure, although, in this case, we do not have to go so far. If, as here, you find an erroneous law as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom. Not a reference in a narrative but a clear legal nexus between the facts and the finding. The law sets no premium on juggling with drafting the award or hiding the legal error by blanking out. The inscrutable face of the sphinx has no better title to invulnerability than a speaking face which is a candid index of the mind. We may, by way aside, express hopefully the view that a minimal judici alisation by statement, laconic or lengthy, of the essential law that guides the decision, is not only reasonable and desirable but has, over the ages, been observed by arbitrators and quasi-judicial tribunals as a norm of processual justice. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award thin partition do their bounds divide on the facts and circumstances of the present case.The basic facts found by the arbitrators are beyond dispute and admit of a brief statement. We summarise the fact situation succinctly and fairly when we state that according to the ar bitrators, the strike in question was in violation of s. 24 of the Act and therefore illegal. This illegal strike animated by inter-union power struggle, inflicted losses on the management by forced closure. The loss flowing from the strike was liable to be recompensed by award of damages. In this 2chain of reasoning is necessarily involved the question of law as to whether an illegal strike causing loss of profit is a delict justifying award of damages. The arbitrators held, yes. We hold this to be an unhappy error of law-loudly obtrusive on the face of the award. We may as well set out, for the sake of assurance, the simple steps in the logic of the arbitrators best expressed in their own words which we excerpt:(a) It is argued that strike is a legitimate weapon in the hands of workmen for redressal of their grievances and if they are made liable for loss on account of strike then the basic idea of strike as a means for having the grievances redressed will be taken away. The fallacy in this argument is that it presupposes the strike not to be illegal and unjustified. In the pre sent case we found the strike to be otherwise. The workmen have got no right of getting their grievances redressed by resorting to illegal means which is an offence(b) It has been argued that the claim for compensation is not an industrial dispute as defined in the Industrial Disputes Act. Considering the issue of compensation in a water-tight compartment the argument might appear to be attractive. But, in our opinion, in this case the claim for compensation by the company is a consequence flowing from an admitted industrial J dispute, which in this case is whether the strike was illegal and/or unjustified and as against the condition of service as laid down in the certified standing order on which point our finding has been against the workmen.18. The award of the Tribunal, in its totality, is quite prolix the reasons stated in arguing out its conclusions many and thus it is just to state that in the present case the arbitrators- two retired Judges of the Calcutta High Court-have made a sufficiently speaking award both t on facts and on law. They have referred to the strike being illegal with specific reference to the provisions of the Act, but faulted them selves in law by upholding a case for compensation as axiomatic, necessarily based on a rule of common law i.e., English common law. The rule of common law thus necessarily arising on the face of the award is a clear question of law.21. Even when there are mixed motives, liability will depend on ascertaining which is the predominant object or the true motive or the real purpose of the defendant. Mere combination or action, even if it be by illegal strike, may be far away from a conspiracy in the - sense of the law because in all such cases, except in conceivably exceptional instances, the object or motive is to advance the workers interests or to steal a march over a rival union but never or rarely to destroy or damage the industry. It is difficult to fancy workers who live by working in the industry combining to kill the goose that lays the golden eggs. The inevitable by-product of combination for cessation of work may be loss to the management but the obvious intendment of such a collective bargaining strategy is to force the employer to accept the demand of the workers for betterment of their lot or redressal of injustice, not to inflict damage on the boss. In short, it is far too recondite for an employer to urge that a strike, albeit illegal, was motivated by destruction of the industry. A scorched earth policy may, in critical times of a war, be reluctantly adopted by a people, but such an imputed motive is largely imaginary in strike situations. However, we are clear in our minds that if some individuals destroy the plant or damage the machinery willfully to cause loss to the employer, such individuals will be liable for the injury so caused. Sabotage is no weapon in workers legal armoury.23. It is absolutely plain that the tort of conspiracy necessarily involves advertence to and affirmation of the object of the combination being the infliction of damage or distraction on the plaintiff. The strike may be illegal but if t he object is to bring the employer to terms with the employees or to bully the rival trade union into submission, there cannot be an actionable combination in tort. In the present case, it is unfortunate that the arbitrators simply did not investigate or pass upon the object of the strike. If the strike is illegal, the tort of conspiracy is made out, appears to be the proposition of law writ tersely into the award. On the other hand, it is freely conceded by counsel for the appellant that t he object was inter-union rivalry. There is thus a clear lapse in the law on the part of the arbitrators manifest. , on the face of the award.25. We may as well suggest that, to silence possible mischief flowing from the confused state of t he law and remembering how dangerous J it would be if long, protracted, but technically illegal strikes were to be followed by claims by managements for compensation for loss of profits, a legislative reform and re-statement of the law were under taken at a time when the State is anxious for industrial harmony consistent with workers welfare, This rather longish discussion has become necessary because the problem is serious and sensitive and the law is somewhat slippery even in En gland. We are convinced that the award is bad because the error of law is patent26. The High Court has touched upon another fatal frailty in the ten ability of the award of compensation for the loss of profits flowing from the illegal strike. We express our concurrence with the High Court that the sole and whole foundation of the award of compensation by the arbitrators, ignoring the casual reference to an ulterior , motive of inter-union rivalry, is squarely the illegality of the strike, The workers went on strike claiming payment of bonus as crystalized by the earlier settlement (d/2-10-1957). There thus arose an industrial dispute within Section 2(k) of the Act. Since conciliation proceedings were pending the strike was ipso jure illegal (Section 23 and 24). The consequence, near or remote, of this combined cessation of work caused loss to the management. Therefore the strikers were liable in damage to make good the loss. Such is the logic of the award.27. It is common case that the demands covered by the strike and the wages during the period of the strike constitute an industrial dispute within the sense of s. 2(k), of the Act. Section 23, read with Section 24, it is agreed by both sides, make t he strike in question illegal. An illegal strike is a creation of the Act. As we have pointed out earlier, the compensation claimed and awarded is a direct reparation for the loss of profits of the employer caused by the illegal strike. If so, it is contended by the respondents, the remedy for the illegal strike and its fall- out has to be sought within the statute and not de hors it. If this stand of the workers is right, the remedy indicated in Section 26 of the Act, viz., prosecution for starting and continuing an illegal strike, is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that the relief of compensation by proceedings in arbitration is contrary to law and bad.29. Since the Act which creates rights and remedies has to be considered as one homogeneous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face on its face we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex-facie legal error.30. It was argued, and with force in our view, that the question of compensation by workers to the management was wholly extraneous to the Act and therefore, outside the jurisdiction of a voluntary reference of industrial dispute under Section 10 A. While we are not called upon to pronounce conclusively on the contention, since we have ex pressed our concurrence with the High Court on other grounds, we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act, if we may silhouette it, is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an industrial dispute. Strikes and lock-outs stem from such disputes. The machinery for settlement of such disputes at various stages is provided for by the act. The statutory imprimatur is given to settlement and awards, and norms of discipline during the pendency of proceedings are set down in the Act. The proscriptions stipulated, as for example the prohibition of a strike, are followed by penalties, if breached. Summary procedures for adjudication as to whether conditions of service etc., of employees have been changed during the s pendency of proceedings, special provision for recovery of money due to workers from employers and other related regulations, are also written into the Act. Against this backdrop, we have to see whether a claim by an employer from his workmen of compensation . consequent on any conduct of theirs, comes within the purview of the Act. Suffice it to say that a reference to arbitration under Section 10 A is restricted to existing or apprehended industrial disputes. Be it noted that we are not concerned with a private arbitration but a statutory one governed by the Industrial Disputes Act, deriving its validity, enforceability and protective mantle during the pendency of the proceedings, from 10 A. No industrial dispute, no valid arbitral reference. Once we grasp this truth, the rest of the logic is simple. What is the industrial dispute in the present case? Everything that overflows such disputes spills into areas where the arbitrator deriving authority under Section 10 A has no jurisdiction. The consent of the parties cannot create arbitral jurisdiction under the Act. In this perspective, the claim for compensation can be a lawful subject for arbitration only if it can be accommodated by the definition of industrial dispute in Section 2 (k) . Undoubtedly this expression must receive a wide collnotation, calculated as it is to produce industrial peace. Indeed, the legislation substitutes for free bargaining between the parties a binding award; but what disputes or differences fall within the scope of the Act? This matter fell for the consideration of the Federal Court in Western India Automobile Association([1949] I L. L. J. 245.). Without launching on a long discussion, we may state that compensation for loss of business is not a dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. We are unable to imagine a tort liability or compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen.31. In this context, we are strengthened in our conclusion by the provisions of Section 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award, but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen.- And indeed, it may be a little startling to find such a provision, having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre-Independence statutes in the interpretative process. As yet, and hopefully, claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However, as earlier stated, we do not pronounce finally as it is not necessary32. There was argument at the bar that the High Court was in error in relying on s. 18 of the Trade Unions Act, 1926 to rebuff the claim for compensation. We have listened to the arguments of Shri B.C. Ghosh in support of the view of the High Court, understood on a wider basis. Nevertheless, we do not wish to rest our judgment on that ground. Counsel for the appellants cited some decisions to show that an award falling outside the orbit of the Indian Arbitration Act can be enforced by action in court. We do not think the problem so posed arises in the instant case.
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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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must be by a remedy provided uno flatu in the statute. To sum up, in the language of the Premier Automobiles Ltd. (Supra): If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only , remedy available to the suitor is to get an adjudication under the Act. 29. Since the Act which creates rights and remedies has to be considered as one homogeneous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face on its face we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex-facie legal error. 30. It was argued, and with force in our view, that the question of compensation by workers to the management was wholly extraneous to the Act and therefore, outside the jurisdiction of a voluntary reference of industrial dispute under Section 10 A. While we are not called upon to pronounce conclusively on the contention, since we have ex pressed our concurrence with the High Court on other grounds, we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act, if we may silhouette it, is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an industrial dispute. Strikes and lock-outs stem from such disputes. The machinery for settlement of such disputes at various stages is provided for by the act. The statutory imprimatur is given to settlement and awards, and norms of discipline during the pendency of proceedings are set down in the Act. The proscriptions stipulated, as for example the prohibition of a strike, are followed by penalties, if breached. Summary procedures for adjudication as to whether conditions of service etc., of employees have been changed during the s pendency of proceedings, special provision for recovery of money due to workers from employers and other related regulations, are also written into the Act. Against this backdrop, we have to see whether a claim by an employer from his workmen of compensation . consequent on any conduct of theirs, comes within the purview of the Act. Suffice it to say that a reference to arbitration under Section 10 A is restricted to existing or apprehended industrial disputes. Be it noted that we are not concerned with a private arbitration but a statutory one governed by the Industrial Disputes Act, deriving its validity, enforceability and protective mantle during the pendency of the proceedings, from 10 A. No industrial dispute, no valid arbitral reference. Once we grasp this truth, the rest of the logic is simple. What is the industrial dispute in the present case? Everything that overflows such disputes spills into areas where the arbitrator deriving authority under Section 10 A has no jurisdiction. The consent of the parties cannot create arbitral jurisdiction under the Act. In this perspective, the claim for compensation can be a lawful subject for arbitration only if it can be accommodated by the definition of industrial dispute in Section 2 (k) . Undoubtedly this expression must receive a wide collnotation, calculated as it is to produce industrial peace. Indeed, the legislation substitutes for free bargaining between the parties a binding award; but what disputes or differences fall within the scope of the Act? This matter fell for the consideration of the Federal Court in Western India Automobile Association([1949] I L. L. J. 245.). Without launching on a long discussion, we may state that compensation for loss of business is not a dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. We are unable to imagine a tort liability or compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen. 31. In this context, we are strengthened in our conclusion by the provisions of Section 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award, but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen.- And indeed, it may be a little startling to find such a provision, having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre-Independence statutes in the interpretative process. As yet, and hopefully, claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However, as earlier stated, we do not pronounce finally as it is not necessary. 32. There was argument at the bar that the High Court was in error in relying on s. 18 of the Trade Unions Act, 1926 to rebuff the claim for compensation. We have listened to the arguments of Shri B.C. Ghosh in support of the view of the High Court, understood on a wider basis. Nevertheless, we do not wish to rest our judgment on that ground. Counsel for the appellants cited some decisions to show that an award falling outside the orbit of the Indian Arbitration Act can be enforced by action in court. We do not think the problem so posed arises in the instant case.
### Response:
0
### Explanation:
this stand of the workers is right, the remedy indicated in Section 26 of the Act, viz., prosecution for starting and continuing an illegal strike, is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that the relief of compensation by proceedings in arbitration is contrary to law and bad.29. Since the Act which creates rights and remedies has to be considered as one homogeneous whole, it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis, the remedy for the illegal strike (a concept which is the creature not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act. The claim for compensation and the award thereof in arbitral proceedings is invalid on its face on its face we say because this jurisdictional point has been considered by the arbitrators and decided by committing an ex-facie legal error.30. It was argued, and with force in our view, that the question of compensation by workers to the management was wholly extraneous to the Act and therefore, outside the jurisdiction of a voluntary reference of industrial dispute under Section 10 A. While we are not called upon to pronounce conclusively on the contention, since we have ex pressed our concurrence with the High Court on other grounds, we rest content with briefly sketching the reasoning and its apparent tenability. The scheme of the Act, if we may silhouette it, is to codify the law bearing on industrial dispute. The jurisdictional essence of proceedings under the Act is the presence of an industrial dispute. Strikes and lock-outs stem from such disputes. The machinery for settlement of such disputes at various stages is provided for by the act. The statutory imprimatur is given to settlement and awards, and norms of discipline during the pendency of proceedings are set down in the Act. The proscriptions stipulated, as for example the prohibition of a strike, are followed by penalties, if breached. Summary procedures for adjudication as to whether conditions of service etc., of employees have been changed during the s pendency of proceedings, special provision for recovery of money due to workers from employers and other related regulations, are also written into the Act. Against this backdrop, we have to see whether a claim by an employer from his workmen of compensation . consequent on any conduct of theirs, comes within the purview of the Act. Suffice it to say that a reference to arbitration under Section 10 A is restricted to existing or apprehended industrial disputes. Be it noted that we are not concerned with a private arbitration but a statutory one governed by the Industrial Disputes Act, deriving its validity, enforceability and protective mantle during the pendency of the proceedings, from 10 A. No industrial dispute, no valid arbitral reference. Once we grasp this truth, the rest of the logic is simple. What is the industrial dispute in the present case? Everything that overflows such disputes spills into areas where the arbitrator deriving authority under Section 10 A has no jurisdiction. The consent of the parties cannot create arbitral jurisdiction under the Act. In this perspective, the claim for compensation can be a lawful subject for arbitration only if it can be accommodated by the definition of industrial dispute in Section 2 (k) . Undoubtedly this expression must receive a wide collnotation, calculated as it is to produce industrial peace. Indeed, the legislation substitutes for free bargaining between the parties a binding award; but what disputes or differences fall within the scope of the Act? This matter fell for the consideration of the Federal Court in Western India Automobile Association([1949] I L. L. J. 245.). Without launching on a long discussion, we may state that compensation for loss of business is not a dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. We are unable to imagine a tort liability or compensation claim based on loss of business being regarded as an industrial dispute as defined in the Act, having regard to the language used, the setting and purpose of the statute and the industrial flavour of the dispute as one between the management and workmen.31. In this context, we are strengthened in our conclusion by the provisions of Section 33C which provides for speedy recovery of money due to a workman from an employer under a settlement or an award, but not for the converse case of money due to an employer from workmen. There is no provision in the Act which contemplates a claim for money by an employer from the workmen.- And indeed, it may be a little startling to find such a provision, having regard to workmen being the weaker section and Part IV of the Constitution being loaded in their favour. The new light shed by the benign clauses of Part IV must illumine even pre-Independence statutes in the interpretative process. As yet, and hopefully, claims by employers against workmen on ground of tortious liability have not found a place in the pharmacopoeia of Indian Industrial Law. However, as earlier stated, we do not pronounce finally as it is not necessary32. There was argument at the bar that the High Court was in error in relying on s. 18 of the Trade Unions Act, 1926 to rebuff the claim for compensation. We have listened to the arguments of Shri B.C. Ghosh in support of the view of the High Court, understood on a wider basis. Nevertheless, we do not wish to rest our judgment on that ground. Counsel for the appellants cited some decisions to show that an award falling outside the orbit of the Indian Arbitration Act can be enforced by action in court. We do not think the problem so posed arises in the instant case.
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Dharmaposhanam Co. Kerala Vs. Commissioner Of Income Tax, Kerala
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in the way of profit making, in the case before us, under the cover of the provisions of the deed, which enables us to decipher the meaning and determine the predominantly profit-making character of the trust. 7. In a subsequent case, Commissioner of Income-tax v. Cochin Chamber of Commerce and Industry [1975] 101 ITR 796 (SC), this court extended the test to income derived from activities carried on in aid of, and incidental to, the primary object of the trust. We may note that no attempt has been made by the appellant before us to cast doubt on the validity of the observations made in those two cases, and we proceed on the footing that they convey the true content of the law.It is, therefore, apparent that among the objects contained in the original unamended sub-clause (b) of clause 3 of the memorandum are objects which, while referable to the residual general head in the definition of charitable purpose in section 2(15) of the Act, none the less do not satisfy the condition that they should not involve the carrying on of any activity for profit. The result is that the objects industries and common good cannot be described as charitable purposes. What follows then is this, that the said sub- clause (b) can be said to contain some objects which are non charitable. They are all objects which appear to enjoy an equal status. It is open to the appellant, in its discretion, to apply the income derived from conducting kuries and from money-lending, to any of the objects. No definite part of the business or of its income is related to charitable purposes only. Consequently, in view of Mohammed Ibrahim Riza v. Commissioner of Income-tax [1930] LR 57 IA 260; AIR 1930 PC 226 and East India Industries (Madras) P. Ltd. v. Commissioner of Income-tax [1967] 65 ITR 611 (SC), the entire claim to exemption must fail and it cannot be said that any part of the income under consideration is exempt from tax. That is the position in regard to the assessment years 1962-63 to 1965-66 before us. 8. It has been seriously urged for the appellant that in regard to the assessment years 1966-67 to 1968-69, the position has been radically altered by reason of the amendments made in the memorandum and the articles of association. The word industries has been dropped and the words medical relief have been added. And as regards common good, article 58 now likens it to charity, education and medical relief. None the less, it is clear from the amended sub-clause (b) of clause 3 of the memorandum that it forms a distinct object from them. The words are other matters of public good. Consequently, the object still falls under the residual general head mentioned in section 2(15). The same considerations apply, and the same conclusion follows, as under the original provisions of the memorandum and articles of association.Great reliance has been placed on behalf of the appellant on Commissioner of Income-tax v. Dharmodayam co. [1977] 109 ITR 527 (SC) and it has been seriously urged that the decision of this court in that case concludes the point raised in these appeals. We find it not possible to accept this. In that case, the income derived by the assessee from kuries was held by this court to be exempt under section 11(1)(a) of the Act, but the decision proceeded almmost entirely on the assumption that the Kerala High Court had found in Dharmodayam Co. v. Commissioner of Income-tax [1962]45 ITR 478 (Ker), in a case between the same parties, that the Kuries business was itself held under trust for charitable purpose and from that the court inferred that the business activity was not undertaken by the assessee in order to advance any object of general public untility. No such finding has been rendered by anny High Court in a case to which the appellant is a party. It will be noticed that the court cautioned in its judgment in Commissioner of Income-tax v. Dharmodayam Co.[1977] 109 ITR 527 (SC) that the decision was strictly liimited to the facts of that case. 9. It has been urged on behalf of the appellant that what should be taken into consideration is the activity actually conducted by the assessee, and not what is open to it under the provisions of its memorandum of association. We do not agree. Whether a trust is for charitable purposes falls to be determined by reference to all the objects for which the trust has been brought into existence. See Tennent Plays Lid. v. Commissioners of Inland Revenue [1948] 30 TC 107 (CA) and Incorporated Council of Law Reporting for England and wales v. Attorney-General and commissioner of Inland Revenue [1971] 47 TC 321 (CA). In Rex v. special Commissioner of inncome Tax [1922] 8 TC 286 (CA), it was pointed out by the court of Appeal in England that if the settlor reserves to himself the power of appointment under which he might appoint to non-charitable purposes, the trust cannot claim exemption even though the power of appointment is in fact exercised in favour of a charitable object. It wouuld be a different can where one or more of the objects mentioned in the memorandum of association, although included therein, were never intended to be undertaken. If there is evidence pointing to that conclusion, clearly the court will ignore the object and proceed to consider the case as if it did not exist in the memorandum. In Commissioner of Income-tax v. Dharmodayam Co. [1977] 109 ITR 527 (SC), it was that basis on which this court proceeded when it observed that the assessee had never engaged itself in any industry or in any other activity of public interest.On the aforesaid consideration, we endorse the final conclusion of the High Court and hold that it rightly answered the question referred to it in the several references in the negative, in favour of the respondent and against the appellant. 10.
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0[ds]On a consideration of the rival contentions of the parties, the position appears to be this. The appellant can succeed in its claim to exemption under section 11(1)(a) of the Act if the income from the business of conducting kuries and of money-lending can be said to be income derived from property held under trust wholly for charitable purposes. It is well settled that business is property with the meaning of section 11(1)(a) :There can be little doubt that when sub-clause (a) of clause 3 of the memorandum says :To raise funds by conducting kuries, with company as foreman, receiving donations and subscriptions by lending money on interest and by such other means as the company deem fit, it refers to powers conferred on the appellant to raise money in aid of, and for the purpose of accomplishing, the objects mentioned in sub-clause (b) of clause 3 of the memorandum. Up to June 6, 1965, sub-clause (b) read :To do the needful for the promotion of charity, education, industries, etc., and public goodCan all the purposes mentioned in sub-clause (b) be described as charitable purposes ? Section 2(15) of the Act defines the expression charitable purpose as including relief of the poor, education, medical relief and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. Two objects in sub-clause (b) of clause 3 of the memorandum need to be considered, industries and public good. As regards the latter, the decision on what should be the purposes of common good was left to the general meeting by articles 58 of the articles of association. Having regard to the context in which these words appear in the memorandum and the articles, they must evidently be referred to the residual general head in the definition in section 2(15) of the Act, that is say, the advancement of any other object of general public utility .......... But this head is qualified by the restrictive words not involving the carrying on of any activity for profit. The operation of an industry ordinarily envisages a profit- making activity, and so far as the advancement of public good is concerned, it is open to the appellant to pursue a profit making activity in the course of carrying out that purpose, which of course depends on the nature and purpose of the public good. Nowhere do we find in the material before us any limiting provision that if the appellant carries on any activity in the course of actually carrying out those purposes of the trust it should refrain from adopting and pursuing a profit making activity. In Sole Trustee, Loka Shikshana Trust v. Commissioner of Income-tax [1975] 101 ITR 234 , 243 (SC), Khanna and Gupta JJ., dealing with a case in which the assessee carried on a business in the course of the actual carrying out of a primary purpose of the trust, rejected the claim to exemption and declared :The fact that the appellant trust is engaged in the business of printing and publication of newspaper ans journals and the further fact that the aforesaid activity yields or is one likely to yield profit and there are no restrictions on the appellant-trust earning profits in the course of its business would go to show that the purpose of the appellant-trust does not satisfy the requirement that it should be one not involving the carrying on of any activity for profit...... Ordinarily, profit motive is a normal incident of business activity and if the activity of a consists of carrying on of a business and there are no restrictions on its making profit, the court would be well justified in assuming in the absence of some indication to the contrary that the object of the trust involves the carrying on of an activity for profitConsequently, the object still falls under the residual general head mentioned in section 2(15). The same considerations apply, and the same conclusion follows, as under the original provisions of the memorandum and articles of association.Great reliance has been placed on behalf of the appellant on Commissioner of Income-tax v. Dharmodayam co. [1977] 109 ITR 527 (SC) and it has been seriously urged that the decision of this court in that case concludes the point raised in these appeals. We find it not possible to accept this. In that case, the income derived by the assessee from kuries was held by this court to be exempt under section 11(1)(a) of the Act, but the decision proceeded almmost entirely on the assumption that the Kerala High Court had found in Dharmodayam Co. v. Commissioner of Income-tax [1962]45 ITR 478 (Ker), in a case between the same parties, that the Kuries business was itself held under trust for charitable purpose and from that the court inferred that the business activity was not undertaken by the assessee in order to advance any object of general public untility. No such finding has been rendered by anny High Court in a case to which the appellant is a party. It will be noticed that the court cautioned in its judgment in Commissioner of Income-tax v. Dharmodayam Co.[1977] 109 ITR 527 (SC) that the decision was strictly liimited to the facts of that caseWe do not agree. Whether a trust is for charitable purposes falls to be determined by reference to all the objects for which the trust has been brought into existence. See Tennent Plays Lid. v. Commissioners of Inland Revenue [1948] 30 TC 107 (CA) and Incorporated Council of Law Reporting for England and wales v. Attorney-General and commissioner of Inland Revenue [1971] 47 TC 321 (CA). In Rex v. special Commissioner of inncome Tax [1922] 8 TC 286 (CA), it was pointed out by the court of Appeal in England that if the settlor reserves to himself the power of appointment under which he might appoint to non-charitable purposes, the trust cannot claim exemption even though the power of appointment is in fact exercised in favour of a charitable object. It wouuld be a different can where one or more of the objects mentioned in the memorandum of association, although included therein, were never intended to be undertaken. If there is evidence pointing to that conclusion, clearly the court will ignore the object and proceed to consider the case as if it did not exist in the memorandum. In Commissioner of Income-tax v. Dharmodayam Co. [1977] 109 ITR 527 (SC), it was that basis on which this court proceeded when it observed that the assessee had never engaged itself in any industry or in any other activity of public interest.On the aforesaid consideration, we endorse the final conclusion of the High Court and hold that it rightly answered the question referred to it in the several references in the negative, in favour of the respondent and against the appellant.
| 0 | 2,850 | 1,290 |
### 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:
in the way of profit making, in the case before us, under the cover of the provisions of the deed, which enables us to decipher the meaning and determine the predominantly profit-making character of the trust. 7. In a subsequent case, Commissioner of Income-tax v. Cochin Chamber of Commerce and Industry [1975] 101 ITR 796 (SC), this court extended the test to income derived from activities carried on in aid of, and incidental to, the primary object of the trust. We may note that no attempt has been made by the appellant before us to cast doubt on the validity of the observations made in those two cases, and we proceed on the footing that they convey the true content of the law.It is, therefore, apparent that among the objects contained in the original unamended sub-clause (b) of clause 3 of the memorandum are objects which, while referable to the residual general head in the definition of charitable purpose in section 2(15) of the Act, none the less do not satisfy the condition that they should not involve the carrying on of any activity for profit. The result is that the objects industries and common good cannot be described as charitable purposes. What follows then is this, that the said sub- clause (b) can be said to contain some objects which are non charitable. They are all objects which appear to enjoy an equal status. It is open to the appellant, in its discretion, to apply the income derived from conducting kuries and from money-lending, to any of the objects. No definite part of the business or of its income is related to charitable purposes only. Consequently, in view of Mohammed Ibrahim Riza v. Commissioner of Income-tax [1930] LR 57 IA 260; AIR 1930 PC 226 and East India Industries (Madras) P. Ltd. v. Commissioner of Income-tax [1967] 65 ITR 611 (SC), the entire claim to exemption must fail and it cannot be said that any part of the income under consideration is exempt from tax. That is the position in regard to the assessment years 1962-63 to 1965-66 before us. 8. It has been seriously urged for the appellant that in regard to the assessment years 1966-67 to 1968-69, the position has been radically altered by reason of the amendments made in the memorandum and the articles of association. The word industries has been dropped and the words medical relief have been added. And as regards common good, article 58 now likens it to charity, education and medical relief. None the less, it is clear from the amended sub-clause (b) of clause 3 of the memorandum that it forms a distinct object from them. The words are other matters of public good. Consequently, the object still falls under the residual general head mentioned in section 2(15). The same considerations apply, and the same conclusion follows, as under the original provisions of the memorandum and articles of association.Great reliance has been placed on behalf of the appellant on Commissioner of Income-tax v. Dharmodayam co. [1977] 109 ITR 527 (SC) and it has been seriously urged that the decision of this court in that case concludes the point raised in these appeals. We find it not possible to accept this. In that case, the income derived by the assessee from kuries was held by this court to be exempt under section 11(1)(a) of the Act, but the decision proceeded almmost entirely on the assumption that the Kerala High Court had found in Dharmodayam Co. v. Commissioner of Income-tax [1962]45 ITR 478 (Ker), in a case between the same parties, that the Kuries business was itself held under trust for charitable purpose and from that the court inferred that the business activity was not undertaken by the assessee in order to advance any object of general public untility. No such finding has been rendered by anny High Court in a case to which the appellant is a party. It will be noticed that the court cautioned in its judgment in Commissioner of Income-tax v. Dharmodayam Co.[1977] 109 ITR 527 (SC) that the decision was strictly liimited to the facts of that case. 9. It has been urged on behalf of the appellant that what should be taken into consideration is the activity actually conducted by the assessee, and not what is open to it under the provisions of its memorandum of association. We do not agree. Whether a trust is for charitable purposes falls to be determined by reference to all the objects for which the trust has been brought into existence. See Tennent Plays Lid. v. Commissioners of Inland Revenue [1948] 30 TC 107 (CA) and Incorporated Council of Law Reporting for England and wales v. Attorney-General and commissioner of Inland Revenue [1971] 47 TC 321 (CA). In Rex v. special Commissioner of inncome Tax [1922] 8 TC 286 (CA), it was pointed out by the court of Appeal in England that if the settlor reserves to himself the power of appointment under which he might appoint to non-charitable purposes, the trust cannot claim exemption even though the power of appointment is in fact exercised in favour of a charitable object. It wouuld be a different can where one or more of the objects mentioned in the memorandum of association, although included therein, were never intended to be undertaken. If there is evidence pointing to that conclusion, clearly the court will ignore the object and proceed to consider the case as if it did not exist in the memorandum. In Commissioner of Income-tax v. Dharmodayam Co. [1977] 109 ITR 527 (SC), it was that basis on which this court proceeded when it observed that the assessee had never engaged itself in any industry or in any other activity of public interest.On the aforesaid consideration, we endorse the final conclusion of the High Court and hold that it rightly answered the question referred to it in the several references in the negative, in favour of the respondent and against the appellant. 10.
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### Explanation:
of the memorandum. Up to June 6, 1965, sub-clause (b) read :To do the needful for the promotion of charity, education, industries, etc., and public goodCan all the purposes mentioned in sub-clause (b) be described as charitable purposes ? Section 2(15) of the Act defines the expression charitable purpose as including relief of the poor, education, medical relief and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. Two objects in sub-clause (b) of clause 3 of the memorandum need to be considered, industries and public good. As regards the latter, the decision on what should be the purposes of common good was left to the general meeting by articles 58 of the articles of association. Having regard to the context in which these words appear in the memorandum and the articles, they must evidently be referred to the residual general head in the definition in section 2(15) of the Act, that is say, the advancement of any other object of general public utility .......... But this head is qualified by the restrictive words not involving the carrying on of any activity for profit. The operation of an industry ordinarily envisages a profit- making activity, and so far as the advancement of public good is concerned, it is open to the appellant to pursue a profit making activity in the course of carrying out that purpose, which of course depends on the nature and purpose of the public good. Nowhere do we find in the material before us any limiting provision that if the appellant carries on any activity in the course of actually carrying out those purposes of the trust it should refrain from adopting and pursuing a profit making activity. In Sole Trustee, Loka Shikshana Trust v. Commissioner of Income-tax [1975] 101 ITR 234 , 243 (SC), Khanna and Gupta JJ., dealing with a case in which the assessee carried on a business in the course of the actual carrying out of a primary purpose of the trust, rejected the claim to exemption and declared :The fact that the appellant trust is engaged in the business of printing and publication of newspaper ans journals and the further fact that the aforesaid activity yields or is one likely to yield profit and there are no restrictions on the appellant-trust earning profits in the course of its business would go to show that the purpose of the appellant-trust does not satisfy the requirement that it should be one not involving the carrying on of any activity for profit...... Ordinarily, profit motive is a normal incident of business activity and if the activity of a consists of carrying on of a business and there are no restrictions on its making profit, the court would be well justified in assuming in the absence of some indication to the contrary that the object of the trust involves the carrying on of an activity for profitConsequently, the object still falls under the residual general head mentioned in section 2(15). The same considerations apply, and the same conclusion follows, as under the original provisions of the memorandum and articles of association.Great reliance has been placed on behalf of the appellant on Commissioner of Income-tax v. Dharmodayam co. [1977] 109 ITR 527 (SC) and it has been seriously urged that the decision of this court in that case concludes the point raised in these appeals. We find it not possible to accept this. In that case, the income derived by the assessee from kuries was held by this court to be exempt under section 11(1)(a) of the Act, but the decision proceeded almmost entirely on the assumption that the Kerala High Court had found in Dharmodayam Co. v. Commissioner of Income-tax [1962]45 ITR 478 (Ker), in a case between the same parties, that the Kuries business was itself held under trust for charitable purpose and from that the court inferred that the business activity was not undertaken by the assessee in order to advance any object of general public untility. No such finding has been rendered by anny High Court in a case to which the appellant is a party. It will be noticed that the court cautioned in its judgment in Commissioner of Income-tax v. Dharmodayam Co.[1977] 109 ITR 527 (SC) that the decision was strictly liimited to the facts of that caseWe do not agree. Whether a trust is for charitable purposes falls to be determined by reference to all the objects for which the trust has been brought into existence. See Tennent Plays Lid. v. Commissioners of Inland Revenue [1948] 30 TC 107 (CA) and Incorporated Council of Law Reporting for England and wales v. Attorney-General and commissioner of Inland Revenue [1971] 47 TC 321 (CA). In Rex v. special Commissioner of inncome Tax [1922] 8 TC 286 (CA), it was pointed out by the court of Appeal in England that if the settlor reserves to himself the power of appointment under which he might appoint to non-charitable purposes, the trust cannot claim exemption even though the power of appointment is in fact exercised in favour of a charitable object. It wouuld be a different can where one or more of the objects mentioned in the memorandum of association, although included therein, were never intended to be undertaken. If there is evidence pointing to that conclusion, clearly the court will ignore the object and proceed to consider the case as if it did not exist in the memorandum. In Commissioner of Income-tax v. Dharmodayam Co. [1977] 109 ITR 527 (SC), it was that basis on which this court proceeded when it observed that the assessee had never engaged itself in any industry or in any other activity of public interest.On the aforesaid consideration, we endorse the final conclusion of the High Court and hold that it rightly answered the question referred to it in the several references in the negative, in favour of the respondent and against the appellant.
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Rama Shankar Singh & Anr Vs. Mst. Shyamlata Devi And Ors
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Rs. 36,405/- on account of their share of the rent for1356 to 1360 Faslis and interest thereon at 1 per cent per annum. During the pendency of the suit, defendant 2 died and his heirs were substituted as defendants 2 and 2 (a). The Trial Court decreed the suit on contest against defendants 2 and 2 (a) and ex parte against defendants 1 and 3 with future interest and costs. On appeal, the High Court held that (1) as defendant 2 had only 4 anna share in the lessees interest as mentioned in the lease deed and as he had acquired another one anna share in the lessees interest subsequently, defendants 2 and 2 (a) were liable to pay only 5 annas share in the annual rent, that is to say, Rs. 1875/- per annum and defendants 1 and 3 were liable to pay the balance rent; (2) that as the lease deed granted a lease of forest rights, the suit was governed by Article 2 (b) (i) of Schedule III of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation, and (3) in view of Section 67 of the Bihar Tenancy Act the plaintiffs could claim interest at the rate of 6 1/4 per cent per annum only. Accordingly the High Court allowed the appeal in part and passed a decree against defendants 2 and 2 (a) for 5 annas share of the rent for 1358 to 1360 Faslis and a separate decree against defendants 1 and 3 for the balance rent for those years with interest at 6 1/4 per cent per annum. The plaintiffs have filed the present appeal after obtaining a certificate from the High Court. The appellants challenge the correctness of all the findings of the High Court. 2. Clause 3 of the lease deed provided:" that the lessees shall pay an annual Zama of Rs. 16,000/- in respect of the thika property on 1st Kuar of every year. If for any reason, the rent for two consecutive years shall fall into arrears, in that case the lessors shall be competent to enter khas possession and occupation of the thika property and to this the lessors (?) shall have no objection and in case of making default the lessees shall pay an interest at the rate of Re. 1/- per cent till the date of payment. The lessors either separately or jointly shall realise (the amount) to the extent of their respective shares according to their choice by instituting (sic) in Court with interest thereon mentioned above from the persons and properties of the lessees." At the end of the lease it was stated that defendant 1 had twelve anna share in the lessees interest and his share of the rent was Rs. 12,000/-. It was also stated that defendant 2 had 4 anna share in the lessees interest and his share of the rent was Rs. 4,000/-. Clause 3 of the deed clearly shows that the lessees were jointly liable to pay the annual rent of Rs. 16,000/-. The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. The joint liability of the lessees is clearly indicated by the provision that the entire lease would be terminable on default of payment of rent for two consecutive years.Having regard to Section 43 of the Indian Contract Act, 1872 defendants 1 and 2 were jointly and severally liable to pay the rent. It was not disputed before the High Court that the liability of defendant 3 stood on the same footing. The High Court was in error in holding that defendant 2 was liable to pay only 5 anna share in the rent. 3. The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded.Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice. 4. On a careful reading of the lease deed, we are satisfied that it granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and having regard to Sec. 193 of the Bihar Tenancy Act is governed by Articles 2 (b) (i) of the Schedule III thereto.This view is supported by the decisions of the Calcutta High Court in Abdulullah v. Asraf Ali (1908) 7 Cal LJ 152 and Bande Ali Fakir v. Amud Sarkar 19 Cal WM 415 = (AIR 1915 Cal 135). The special period of limitation applies though the claim for arrears of rent if founded on a registered instrument, (see Mackenzie v. Haji Syed Muhammad Ali Khan, (1892) ILR 19 Cal 1 (FB)). The High Court was right in holding that the suit in respect of rent for Fasli years 1356 and 1357 was barred by limitation. 5. Having regard to Section 193 all the provisions of the Act applied to a suit. Section 67 (1) provides that arrears of rent shall bear simple interest at the rate of 6 1/4% per annum. The section overrides the contractual stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at the rate of 6 1/4 per cent per annum only.
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1[ds]3. The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded.Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice4. On a careful reading of the lease deed, we are satisfied that it granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and having regard to Sec. 193 of the Bihar Tenancy Act is governed by Articles 2 (b) (i) of the Schedule III thereto5. Having regard to Section 193 all the provisions of the Act applied to a suit. Section 67 (1) provides that arrears of rent shall bear simple interest at the rate of 6 1/4% per annum. The section overrides the contractual stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at the rate of 6 1/4 per cent per annum only.
| 1 | 1,250 | 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:
Rs. 36,405/- on account of their share of the rent for1356 to 1360 Faslis and interest thereon at 1 per cent per annum. During the pendency of the suit, defendant 2 died and his heirs were substituted as defendants 2 and 2 (a). The Trial Court decreed the suit on contest against defendants 2 and 2 (a) and ex parte against defendants 1 and 3 with future interest and costs. On appeal, the High Court held that (1) as defendant 2 had only 4 anna share in the lessees interest as mentioned in the lease deed and as he had acquired another one anna share in the lessees interest subsequently, defendants 2 and 2 (a) were liable to pay only 5 annas share in the annual rent, that is to say, Rs. 1875/- per annum and defendants 1 and 3 were liable to pay the balance rent; (2) that as the lease deed granted a lease of forest rights, the suit was governed by Article 2 (b) (i) of Schedule III of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation, and (3) in view of Section 67 of the Bihar Tenancy Act the plaintiffs could claim interest at the rate of 6 1/4 per cent per annum only. Accordingly the High Court allowed the appeal in part and passed a decree against defendants 2 and 2 (a) for 5 annas share of the rent for 1358 to 1360 Faslis and a separate decree against defendants 1 and 3 for the balance rent for those years with interest at 6 1/4 per cent per annum. The plaintiffs have filed the present appeal after obtaining a certificate from the High Court. The appellants challenge the correctness of all the findings of the High Court. 2. Clause 3 of the lease deed provided:" that the lessees shall pay an annual Zama of Rs. 16,000/- in respect of the thika property on 1st Kuar of every year. If for any reason, the rent for two consecutive years shall fall into arrears, in that case the lessors shall be competent to enter khas possession and occupation of the thika property and to this the lessors (?) shall have no objection and in case of making default the lessees shall pay an interest at the rate of Re. 1/- per cent till the date of payment. The lessors either separately or jointly shall realise (the amount) to the extent of their respective shares according to their choice by instituting (sic) in Court with interest thereon mentioned above from the persons and properties of the lessees." At the end of the lease it was stated that defendant 1 had twelve anna share in the lessees interest and his share of the rent was Rs. 12,000/-. It was also stated that defendant 2 had 4 anna share in the lessees interest and his share of the rent was Rs. 4,000/-. Clause 3 of the deed clearly shows that the lessees were jointly liable to pay the annual rent of Rs. 16,000/-. The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. The joint liability of the lessees is clearly indicated by the provision that the entire lease would be terminable on default of payment of rent for two consecutive years.Having regard to Section 43 of the Indian Contract Act, 1872 defendants 1 and 2 were jointly and severally liable to pay the rent. It was not disputed before the High Court that the liability of defendant 3 stood on the same footing. The High Court was in error in holding that defendant 2 was liable to pay only 5 anna share in the rent. 3. The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded.Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice. 4. On a careful reading of the lease deed, we are satisfied that it granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and having regard to Sec. 193 of the Bihar Tenancy Act is governed by Articles 2 (b) (i) of the Schedule III thereto.This view is supported by the decisions of the Calcutta High Court in Abdulullah v. Asraf Ali (1908) 7 Cal LJ 152 and Bande Ali Fakir v. Amud Sarkar 19 Cal WM 415 = (AIR 1915 Cal 135). The special period of limitation applies though the claim for arrears of rent if founded on a registered instrument, (see Mackenzie v. Haji Syed Muhammad Ali Khan, (1892) ILR 19 Cal 1 (FB)). The High Court was right in holding that the suit in respect of rent for Fasli years 1356 and 1357 was barred by limitation. 5. Having regard to Section 193 all the provisions of the Act applied to a suit. Section 67 (1) provides that arrears of rent shall bear simple interest at the rate of 6 1/4% per annum. The section overrides the contractual stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at the rate of 6 1/4 per cent per annum only.
### Response:
1
### Explanation:
3. The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded.Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice4. On a careful reading of the lease deed, we are satisfied that it granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and having regard to Sec. 193 of the Bihar Tenancy Act is governed by Articles 2 (b) (i) of the Schedule III thereto5. Having regard to Section 193 all the provisions of the Act applied to a suit. Section 67 (1) provides that arrears of rent shall bear simple interest at the rate of 6 1/4% per annum. The section overrides the contractual stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at the rate of 6 1/4 per cent per annum only.
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K.A. Ansari Vs. Indian Airlines Ltd
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the appellants they were in the grade of Rs.6200-175-6550-200-7500-225-7775-250-8025, the learned Single Judge disposed of the application with the following directions to the Indian Airlines:- "It is not being in dispute that when letter dated 23.4.2003 was issued petitioner being a first officer was in the pay scale of Rs.6200- 175-6550-200-7500-225-7775-250-8025.Accordingly, petitioner on ground would have to be placed in the said scale. As this court understands the law to be, if the cadre of a person is changed he would be entitled to an equivalent pay scale and in the absence of an equivalent pay scale would be entitled to be placed in the next above scale.Scale in which the respondent seeks to place the petitioner is Rs.5675-175-6550-200-7500- 225-7775-250-8025. The fact that the upper limit of the two scales i.e., 6200-175-6550- 200-7500-225-7775-250-8025, and Rs.5675- 175-6550-200-7500-225-7775-250-8025 is the same is immaterial.Application for directions is accordingly disposed of directing Indian Airlines to, after grounding, place the petitioner in the pay scale held by the petitioner i.e., Rs.6200-175-6550-200-7500-225-7775-250-8025. In no case the petitioner be placed in a scale lower to the scale aforesaid. However, it is clarified that on grounding, if pay scale of Rs.6200-175-6550- 175-6550-200-7500-225-7775-250-8025 is not available, petitioner would have to be placed in the next higher grade." 12. Aggrieved thereby, the Indian Airlines filed intra-court appeal and as noted above, the Division Bench has reversed the said order. That is how the appellants have come up before us in this appeal.13. We have heard learned counsel for the parties. 14. Ms. Nisha Bagchi, learned counsel appearing on behalf of the appellants submitted that the Division Bench of the High Court failed to appreciate that in the miscellaneous application, no new dispute requiring fresh adjudication had been raised. The relief claimed in the application was only in the nature of clarification to the extent that because of protection of the pay scales at the time of absorption in the Indian Airlines, the appellants were entitled for placement in an equivalent or higher pay scale. It was asserted that by way of clarification, learned Single Judge had merely reiterated and directed implementation of the directions issued while disposing of the writ petitions. It was also pleaded that the main order dated 11th ctober, 2004, having attained finality, the respondent is otherwise bound to comply with the same.15. Per contra, Mr. R.S. Suri, learned counsel appearing on behalf of the Indian Airlines, supporting the order of the Division Bench, submitted that when the proceedings stood terminated on final disposal of the writ petitions, it was not open to the learned Single Judge to reopen the proceedings on filing of the miscellaneous application by the appellant in respect of the same subject matter.16. It is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. It needs little emphasis that when the proceedings stand terminated by final disposal of the writ petition, it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action. If this principle is not followed, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. (See: State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr. ((1987) 2 SCC 179 )). At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words. 17. Therefore, the question for consideration in the instant case is whether the miscellaneous application preferred by the first appellant could be said to be founded on a fresh cause of action?18. Having bestowed our anxious consideration on the rival submissions, we are of the opinion that keeping in view the terms of final order dated 11th October, 2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued. The respondent -Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non-implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4th arch, 2005. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition.19. For the foregoing reasons, we
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1[ds]we are of the opinion that keeping in view the terms of final order dated 11th October, 2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued. The respondent -Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non-implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4th arch, 2005. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition.
| 1 | 2,836 | 390 |
### 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 appellants they were in the grade of Rs.6200-175-6550-200-7500-225-7775-250-8025, the learned Single Judge disposed of the application with the following directions to the Indian Airlines:- "It is not being in dispute that when letter dated 23.4.2003 was issued petitioner being a first officer was in the pay scale of Rs.6200- 175-6550-200-7500-225-7775-250-8025.Accordingly, petitioner on ground would have to be placed in the said scale. As this court understands the law to be, if the cadre of a person is changed he would be entitled to an equivalent pay scale and in the absence of an equivalent pay scale would be entitled to be placed in the next above scale.Scale in which the respondent seeks to place the petitioner is Rs.5675-175-6550-200-7500- 225-7775-250-8025. The fact that the upper limit of the two scales i.e., 6200-175-6550- 200-7500-225-7775-250-8025, and Rs.5675- 175-6550-200-7500-225-7775-250-8025 is the same is immaterial.Application for directions is accordingly disposed of directing Indian Airlines to, after grounding, place the petitioner in the pay scale held by the petitioner i.e., Rs.6200-175-6550-200-7500-225-7775-250-8025. In no case the petitioner be placed in a scale lower to the scale aforesaid. However, it is clarified that on grounding, if pay scale of Rs.6200-175-6550- 175-6550-200-7500-225-7775-250-8025 is not available, petitioner would have to be placed in the next higher grade." 12. Aggrieved thereby, the Indian Airlines filed intra-court appeal and as noted above, the Division Bench has reversed the said order. That is how the appellants have come up before us in this appeal.13. We have heard learned counsel for the parties. 14. Ms. Nisha Bagchi, learned counsel appearing on behalf of the appellants submitted that the Division Bench of the High Court failed to appreciate that in the miscellaneous application, no new dispute requiring fresh adjudication had been raised. The relief claimed in the application was only in the nature of clarification to the extent that because of protection of the pay scales at the time of absorption in the Indian Airlines, the appellants were entitled for placement in an equivalent or higher pay scale. It was asserted that by way of clarification, learned Single Judge had merely reiterated and directed implementation of the directions issued while disposing of the writ petitions. It was also pleaded that the main order dated 11th ctober, 2004, having attained finality, the respondent is otherwise bound to comply with the same.15. Per contra, Mr. R.S. Suri, learned counsel appearing on behalf of the Indian Airlines, supporting the order of the Division Bench, submitted that when the proceedings stood terminated on final disposal of the writ petitions, it was not open to the learned Single Judge to reopen the proceedings on filing of the miscellaneous application by the appellant in respect of the same subject matter.16. It is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. It needs little emphasis that when the proceedings stand terminated by final disposal of the writ petition, it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action. If this principle is not followed, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. (See: State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr. ((1987) 2 SCC 179 )). At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words. 17. Therefore, the question for consideration in the instant case is whether the miscellaneous application preferred by the first appellant could be said to be founded on a fresh cause of action?18. Having bestowed our anxious consideration on the rival submissions, we are of the opinion that keeping in view the terms of final order dated 11th October, 2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued. The respondent -Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non-implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4th arch, 2005. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition.19. For the foregoing reasons, we
### Response:
1
### Explanation:
we are of the opinion that keeping in view the terms of final order dated 11th October, 2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued. The respondent -Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non-implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4th arch, 2005. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition.
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ASSOCIATION FOR DEMOCRATIC REFORMS & ANR Vs. UNION OF INDIA & ORS
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provides anonymity, the Scheme is intended to ensure that everything happens only through banking channels. While the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties. Under clause 7 of the Scheme, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected. 19. As far as the information to the Election Commission is concerned, the interim order passed by this Court on 12.4.2019 takes care of the same. In the reply filed by the Election Commission of India on 3.2.2020 to I.A. No.183625 of 2019, it is stated by them that the Election Commission of India has received sealed covers from various political parties (National, State and registered & unregistered parties). In Annexure C/1, to the reply filed by the Election Commission of India the Election Commission has provided a list of the political parties who have filed necessary details as per the order of this Court dated 12.4.2019. The dates on which the Election Commission of India received the necessary information in sealed covers is also indicated in Annexure C/1. 20. In Annexure C/2 to the reply, the Election Commission has also furnished details of submission of audited annual accounts of the political parties. 21. The fact that some of the parties have not yet submitted their audited annual accounts is a different matter and the same is not the subject matter of the present applications. 22. We do not know at this stage as to how far the allegation that under the Scheme, there would be complete anonymity in the financing of political parties by corporate houses, both in India and abroad, is sustainable. If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme. Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds. 23. Under Section 128 (1) of the Companies Act, 2013 every company shall prepare and keep books of accounts and financial statement for every financial year. Financial statement is defined under Section 2(40) as follows:- 2. ----- (40) financial statement in relation to a company, includes— (i) a balance sheet as at the end of the financial year; (ii) a profit and loss account, or in the case of a company carrying on any activity not for profit, an income and expenditure account for the financial year; (iii) cash flow statement for the financial year; (iv) a statement of changes in equity, if applicable; and (v) any explanatory note annexed to, or forming part of, any document referred to in sub-clause (i) to sub-clause (iv): Provided that the financial statement, with respect to One Person Company, small company and dormant company, may not include the cash flow statement; 24. Under Section 129(1), such financial statements should give a true and fair view of the state of affairs of the company and comply with the accounting standards notified under Section 133. These financial statements are to be placed at every Annual General Meeting of the company. Under Section 137, a copy of the financial statement, along with all the documents duly adopted at the Annual General Meeting shall be filed with the Registrar of Companies. 25. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match the following. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced. 26. One of the contentions of the petitioners is that though the first purchase may be through banking channels for a consideration paid in white money, someone may repurchase the bonds from the first buyer by using black money and hand it over to a political party. But this contention arises out of ignorance of the Scheme. Under Clause 14 of the Scheme, the bonds are not tradable. Moreover, the first buyer will not stand to gain anything out of such sale except losing white money for the black. 27. The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country, is also misconceived. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.
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1[ds]9. We have heard Shri Prashant Bhushan, learned counsel for the applicants/writ petitioners, Shri K.K. Venugopal, learned Attorney General for the Union of India and Shri Rakesh Dwivedi, learned Senior Counsel appearing for the Election Commission of India.10. We should point out at the threshold that there cannot be repeated applications seeking the same relief, merely because the interim reliefs sought, relates to something that is to happen at periodical intervals of time. Under Clause 8(1) of the Electoral Bonds Scheme, 2018 the bonds under the Scheme are made available for purchase, for a period of 10 days each in the months of January, April, July and October. Therefore, once this Court has passed an Order on 12.4.2019 directing some interim arrangement, thereafter applications for the same interim relief cannot be made, every time the window for the purchase under the Scheme is opened.11. Despite the aforesaid normal rule of procedure and practice, we heard the learned counsel on both sides on the present applications, due to the seriousness of the issues raised.13. It is true, as seen from the correspondence, that RBI has had some reservations. But it is not correct to say that the RBI and the Election Commission of India opposed the Electoral Bond Scheme itself. The Electoral Bond Scheme, 2018 was issued by the Central Government by a notification dated 2.1.2018 in exercise of the power conferred by Section 31(3) of the Reserve Bank of India Act, 1934.14. Even in his letter dated 14.9.2017 the then Governor of RBI stated that the major objective of the Scheme is to provide anonymity and that the same can be achieved if the bonds are issued in electronic form with RBI as the depository rather than as a physical scrip. On 27.9.2017 the matter was placed before the Committee of the Central Board of RBI and the Committee flagged serious reservations. These reservations, incorporated in the next letter of the RBI dated 27.9.2017 were read out to us by Shri Prashant Bhushan, in support of his contention that the Scheme, as proposed by the Government will not only be seen as facilitating money laundering, but also projected as intended to enable it.16. Therefore, it is not correct to say that the RBI was opposed to the Scheme in principle. RBIs objection was to the issue of bonds in scrip form rather than in demat form. What RBI wanted to achieve was, in their own words, the twin advantage of (i) providing anonymity to the contributor; and (ii) ensuring that consideration for transfers is through banking channels and not cash or other means. In fact RBI called Electoral Bonds as an enduring reform, consistent with the Governments digitization push. Therefore, the concerns expressed by RBI, to the form and not to the substance, cannot really advance the case of the petitioners.17. As a matter of fact, most of the recommendations of the RBI have been accepted and incorporated in the Scheme. The following features of the Scheme demonstrate this: (i) only political parties registered under Section 29A of the Representation of the People Act, 1951 and secured not less than 1% of the votes polled in the last general election to the House of the people or the legislative assembly shall be entitled to receive the bond; (ii) the bond can be encashed by an eligible political party only through a bank account with the authorized bank; (iii) the extant instructions issued by RBI regarding KYC norms and the banks customer shall apply for the buyers of the bond and the authorized bank may also call for any additional KYC document; (iv) the bond shall be valid for 15 days from the date of issue and no payment will be made to any payee political party if the bond is deposited after the expiry of the validity period; (v) all payments for the issue of the bonds shall be accepted in Indian rupees, through demand draft or cheque or through electronic clearance system or direct debit of the buyers account; (vi) the bond can be encashed only by depositing the same in the designated bank account of the eligible political party; (vii) the face value of the bonds shall be counted as income by way of voluntary contribution received by an eligible political party for the purpose of exemption from income tax under Section 13A of the Income Tax Act, 1961.18. Despite the fact that the Scheme provides anonymity, the Scheme is intended to ensure that everything happens only through banking channels. While the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties. Under clause 7 of the Scheme, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.19. As far as the information to the Election Commission is concerned, the interim order passed by this Court on 12.4.2019 takes care of the same. In the reply filed by the Election Commission of India on 3.2.2020 to I.A. No.183625 of 2019, it is stated by them that the Election Commission of India has received sealed covers from various political parties (National, State and registered & unregistered parties). In Annexure C/1, to the reply filed by the Election Commission of India the Election Commission has provided a list of the political parties who have filed necessary details as per the order of this Court dated 12.4.2019. The dates on which the Election Commission of India received the necessary information in sealed covers is also indicated in Annexure C/1.20. In Annexure C/2 to the reply, the Election Commission has also furnished details of submission of audited annual accounts of the political parties.21. The fact that some of the parties have not yet submitted their audited annual accounts is a different matter and the same is not the subject matter of the present applications.22. We do not know at this stage as to how far the allegation that under the Scheme, there would be complete anonymity in the financing of political parties by corporate houses, both in India and abroad, is sustainable. If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme. Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.24. Under Section 129(1), such financial statements should give a true and fair view of the state of affairs of the company and comply with the accounting standards notified under Section 133. These financial statements are to be placed at every Annual General Meeting of the company. Under Section 137, a copy of the financial statement, along with all the documents duly adopted at the Annual General Meeting shall be filed with the Registrar of Companies.25. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match the following. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.But this contention arises out of ignorance of the Scheme. Under Clause 14 of the Scheme, the bonds are not tradable. Moreover, the first buyer will not stand to gain anything out of such sale except losing white money for the black.27. The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country, is also misconceived. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.
| 1 | 4,040 | 1,696 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
provides anonymity, the Scheme is intended to ensure that everything happens only through banking channels. While the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties. Under clause 7 of the Scheme, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected. 19. As far as the information to the Election Commission is concerned, the interim order passed by this Court on 12.4.2019 takes care of the same. In the reply filed by the Election Commission of India on 3.2.2020 to I.A. No.183625 of 2019, it is stated by them that the Election Commission of India has received sealed covers from various political parties (National, State and registered & unregistered parties). In Annexure C/1, to the reply filed by the Election Commission of India the Election Commission has provided a list of the political parties who have filed necessary details as per the order of this Court dated 12.4.2019. The dates on which the Election Commission of India received the necessary information in sealed covers is also indicated in Annexure C/1. 20. In Annexure C/2 to the reply, the Election Commission has also furnished details of submission of audited annual accounts of the political parties. 21. The fact that some of the parties have not yet submitted their audited annual accounts is a different matter and the same is not the subject matter of the present applications. 22. We do not know at this stage as to how far the allegation that under the Scheme, there would be complete anonymity in the financing of political parties by corporate houses, both in India and abroad, is sustainable. If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme. Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds. 23. Under Section 128 (1) of the Companies Act, 2013 every company shall prepare and keep books of accounts and financial statement for every financial year. Financial statement is defined under Section 2(40) as follows:- 2. ----- (40) financial statement in relation to a company, includes— (i) a balance sheet as at the end of the financial year; (ii) a profit and loss account, or in the case of a company carrying on any activity not for profit, an income and expenditure account for the financial year; (iii) cash flow statement for the financial year; (iv) a statement of changes in equity, if applicable; and (v) any explanatory note annexed to, or forming part of, any document referred to in sub-clause (i) to sub-clause (iv): Provided that the financial statement, with respect to One Person Company, small company and dormant company, may not include the cash flow statement; 24. Under Section 129(1), such financial statements should give a true and fair view of the state of affairs of the company and comply with the accounting standards notified under Section 133. These financial statements are to be placed at every Annual General Meeting of the company. Under Section 137, a copy of the financial statement, along with all the documents duly adopted at the Annual General Meeting shall be filed with the Registrar of Companies. 25. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match the following. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced. 26. One of the contentions of the petitioners is that though the first purchase may be through banking channels for a consideration paid in white money, someone may repurchase the bonds from the first buyer by using black money and hand it over to a political party. But this contention arises out of ignorance of the Scheme. Under Clause 14 of the Scheme, the bonds are not tradable. Moreover, the first buyer will not stand to gain anything out of such sale except losing white money for the black. 27. The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country, is also misconceived. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.
### Response:
1
### Explanation:
the people or the legislative assembly shall be entitled to receive the bond; (ii) the bond can be encashed by an eligible political party only through a bank account with the authorized bank; (iii) the extant instructions issued by RBI regarding KYC norms and the banks customer shall apply for the buyers of the bond and the authorized bank may also call for any additional KYC document; (iv) the bond shall be valid for 15 days from the date of issue and no payment will be made to any payee political party if the bond is deposited after the expiry of the validity period; (v) all payments for the issue of the bonds shall be accepted in Indian rupees, through demand draft or cheque or through electronic clearance system or direct debit of the buyers account; (vi) the bond can be encashed only by depositing the same in the designated bank account of the eligible political party; (vii) the face value of the bonds shall be counted as income by way of voluntary contribution received by an eligible political party for the purpose of exemption from income tax under Section 13A of the Income Tax Act, 1961.18. Despite the fact that the Scheme provides anonymity, the Scheme is intended to ensure that everything happens only through banking channels. While the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties. Under clause 7 of the Scheme, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.19. As far as the information to the Election Commission is concerned, the interim order passed by this Court on 12.4.2019 takes care of the same. In the reply filed by the Election Commission of India on 3.2.2020 to I.A. No.183625 of 2019, it is stated by them that the Election Commission of India has received sealed covers from various political parties (National, State and registered & unregistered parties). In Annexure C/1, to the reply filed by the Election Commission of India the Election Commission has provided a list of the political parties who have filed necessary details as per the order of this Court dated 12.4.2019. The dates on which the Election Commission of India received the necessary information in sealed covers is also indicated in Annexure C/1.20. In Annexure C/2 to the reply, the Election Commission has also furnished details of submission of audited annual accounts of the political parties.21. The fact that some of the parties have not yet submitted their audited annual accounts is a different matter and the same is not the subject matter of the present applications.22. We do not know at this stage as to how far the allegation that under the Scheme, there would be complete anonymity in the financing of political parties by corporate houses, both in India and abroad, is sustainable. If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme. Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.24. Under Section 129(1), such financial statements should give a true and fair view of the state of affairs of the company and comply with the accounting standards notified under Section 133. These financial statements are to be placed at every Annual General Meeting of the company. Under Section 137, a copy of the financial statement, along with all the documents duly adopted at the Annual General Meeting shall be filed with the Registrar of Companies.25. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match the following. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.But this contention arises out of ignorance of the Scheme. Under Clause 14 of the Scheme, the bonds are not tradable. Moreover, the first buyer will not stand to gain anything out of such sale except losing white money for the black.27. The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country, is also misconceived. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.
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Shri M.L. Patil (Dead) Through LRs Vs. The State of Goa and Anr
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M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned final judgment and order dated 11.02.2020 passed by the High Court of Bombay at Goa in Writ Petition No. 961/2015, by which, though the High Court has allowed the said writ petition by holding that the respective writ petitioners ought to have been superannuated/retired at the age of 60 years instead of 58 years, the High Court has refused arrears of pension and has observed that the pension at the revised rates will become payable only from 1st January, 2020, the original writ petitioner has preferred the present appeal. 2. That the appellant – original writ petitioner of writ petition No. 961/2015 and others filed the writ petitions before the High Court challenging the action of the respondents in superannuating/retiring them at the age of 58 years. According to them, the retirement age was 60 years. By the impugned judgment and order, the High Court has held that the retirement age of the respective original writ petitioners was 60 years and they were wrongly superannuated/retired at the age of 58 years. However, as the respective writ petitioners approached the High Court belatedly, the High Court has held that none of the writ petitioners shall be entitled to any salary/back wages for the period of two extra years they would have got in service. The High Court has also observed that though the writ petitioners would be entitled to the pension on the basis that they continued in service until they attain the age of 60 years, they would not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1st January, 2020. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court to the extent denying the back wages for the period of two extra years and observing and directing that original writ petitioner will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1st January, 2020, the original writ petitioner of Writ Petition No. 961/2015 has preferred the present appeal. 3. Having heard Shri Rahul Gupta, learned counsel appearing on behalf of the appellant and Shri Ravindra Lokhande, learned counsel appearing on behalf of the respondent – State of Goa and considering the fact that even by the impugned judgment and order, the High Court has held that action of the State Government in requiring the original petitioners to retire at the age of 58 years or not permitting them to continue in their service upto the age of 60 years is illegal and null and void, we are of the view that the High Court has erred in observing that the appellant will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1 st January, 2020. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent.
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1[ds]3. Having heard Shri Rahul Gupta, learned counsel appearing on behalf of the appellant and Shri Ravindra Lokhande, learned counsel appearing on behalf of the respondent – State of Goa and considering the fact that even by the impugned judgment and order, the High Court has held that action of the State Government in requiring the original petitioners to retire at the age of 58 years or not permitting them to continue in their service upto the age of 60 years is illegal and null and void, we are of the view that the High Court has erred in observing that the appellant will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1 st January, 2020. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent.
| 1 | 656 | 274 |
### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned final judgment and order dated 11.02.2020 passed by the High Court of Bombay at Goa in Writ Petition No. 961/2015, by which, though the High Court has allowed the said writ petition by holding that the respective writ petitioners ought to have been superannuated/retired at the age of 60 years instead of 58 years, the High Court has refused arrears of pension and has observed that the pension at the revised rates will become payable only from 1st January, 2020, the original writ petitioner has preferred the present appeal. 2. That the appellant – original writ petitioner of writ petition No. 961/2015 and others filed the writ petitions before the High Court challenging the action of the respondents in superannuating/retiring them at the age of 58 years. According to them, the retirement age was 60 years. By the impugned judgment and order, the High Court has held that the retirement age of the respective original writ petitioners was 60 years and they were wrongly superannuated/retired at the age of 58 years. However, as the respective writ petitioners approached the High Court belatedly, the High Court has held that none of the writ petitioners shall be entitled to any salary/back wages for the period of two extra years they would have got in service. The High Court has also observed that though the writ petitioners would be entitled to the pension on the basis that they continued in service until they attain the age of 60 years, they would not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1st January, 2020. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court to the extent denying the back wages for the period of two extra years and observing and directing that original writ petitioner will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1st January, 2020, the original writ petitioner of Writ Petition No. 961/2015 has preferred the present appeal. 3. Having heard Shri Rahul Gupta, learned counsel appearing on behalf of the appellant and Shri Ravindra Lokhande, learned counsel appearing on behalf of the respondent – State of Goa and considering the fact that even by the impugned judgment and order, the High Court has held that action of the State Government in requiring the original petitioners to retire at the age of 58 years or not permitting them to continue in their service upto the age of 60 years is illegal and null and void, we are of the view that the High Court has erred in observing that the appellant will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1 st January, 2020. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent.
### Response:
1
### Explanation:
3. Having heard Shri Rahul Gupta, learned counsel appearing on behalf of the appellant and Shri Ravindra Lokhande, learned counsel appearing on behalf of the respondent – State of Goa and considering the fact that even by the impugned judgment and order, the High Court has held that action of the State Government in requiring the original petitioners to retire at the age of 58 years or not permitting them to continue in their service upto the age of 60 years is illegal and null and void, we are of the view that the High Court has erred in observing that the appellant will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1 st January, 2020. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent.
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M/S.Jay Bharat C.& I.Co.Ltd Vs. Commissioner Of Sales Tax
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Instalment Supply case will not be subject to taxation hereafter and the problem of the same transaction being subjected to taxation at two different stages will not arise." 17. Learned senior counsel submits that by equating the two provisions of the Acts, we must give to the Sales Tax Act applicable in Delhi after 1st October, 1959 the same meaning as was given to the Gujarat Act. 18. It appears to us that the aforesaid observations were by way of an obiter. This Court was not called upon to consider the effect of the amendment made to the Delhi Act in 1959. This Court was only concerned with a question whether the State of Gujarat could levy any sales tax at the time when the hirer exercises his option to purchase the vehicle which happened to be in Gujarat at the time when the option was so exercised and despite the fact that sales tax had already been paid on the hire purchase transaction in Delhi earlier. The observations quoted above were merely to the effect that after the amendment there would be no case of taxation at two stages. The aforesaid decisions can be of no assistance to the appellants. 19. Our attention was also drawn to K.L. Johar and Company v. Deputy Commercial Tax Officer, 1965(2) SCR 112. We are unable to see how that case can be of any assistance. The Court there was concerned with the validity of Explanation I to Section 2(h) of the Madras General Sales Tax Act which purported to include a hire purchase transaction within the meaning of the term "sale". This Court held that Explanation I was beyond the competence of the State legislature and the same was accordingly struck down. The Court then dealt with the question as to whether a hire purchase agreement even ripened into a sale and if so when. It took note of the fact that a hire purchase agreement had two elements, namely, the element of bailment and the element of sale, in the sense that it contemplates an eventual sale. The Court came to the conclusion that a sale does take place and the same could be taxed when the hirer exercises the option to purchase the vehicle. With regard to the price at which the transaction would be regarded as having been entered into, the Court observed that the hire charges have to be excluded and the price of the vehicle worked out. The said decision, as we have already observed, can be of no assistance because the State of Madras, as it then was, had no legislative competence to seek to tax a hire purchase agreement to sales tax whereas in Delhi such a transaction could be subjected to tax and the same had been specifically upheld by this Court in the first case of Instalment Supply (P) Ltd. (supra). 20. It appears to us that the amendment of the Act on 1st October, 1959 has, in effect, not altered the position from what existed prior to that date and even after the amendment the principle laid down by this Court in the first case of Instalment Supply Co. (supra) would continue to hold good. 21. We would like to point out that Section 2(g) uses two expressions, namely, "transfer of property in goods" and "transfer of goods on hire-purchase". If the latter part relating to hire purchase had not been there, there can be little doubt that the principle enunciated by this Court in K.L. Johars case (supra) would have clearly been applicable, the hire purchase agreement itself would have been taxable and tax could have been levied only at that time when the option was exercised. This definition of the word "sale", the first part of which is in pari materia with the Sale of Goods Act, was expanded so as to include a transfer of goods on hire purchase or other system of payment by instalments. In the latter portion, in order that the tax is levied there is no requirement that the property in goods should be transferred. What is required is transfer of goods, unlike the first part of this definition which requires transfer of property in goods. The reason for this is very obvious. In the case of hire purchase there are two elements, namely, that of bailment and an element of sale and when a hire purchase agreement is entered into there is transfer of goods on hire purchase which would not include, at that point of time, any transfer of property in the said goods. If the contention of the learned senior counsel for the appellants is accepted, the effect of that would be that the latter portion of the definition could be otiose. If the definition of Section 2(g) was to include within its ambit only that transfer which takes place at the time of purchase when the option is exercised, then it would not have been necessary to widen the scope of the definition to include transfer of goods on hire purchase and to provide for it separately. 22. Coming to the definition of the expression "sale price", we find that if we substitute the defined meaning of the word "sale" occurring in Section 2(g) into the said Section 2(h), it would in effect read as follows : "Sale price means the amount payable to a dealer as consideration for transfer of goods on hire purchase". The word "sale" occurring in Section 2(h) must have the meaning ascribed to it as in Section 2(g). When the word "sale" includes transfer of goods on hire purchase, then whatever is the amount which is paid/payable to the dealer on such a transfer would be included within the meaning of the expression "sale price" in Section 2(h). This being so, the sales tax authorities in the present cases were justified in including in the turnover of the appellants the hire charges as provided for in the hire purchase agreements. 23. For the aforesaid reasons, we
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0[ds]Coming to the definition of the expression "sale price", we find that if we substitute the defined meaning of the word "sale" occurring in Section 2(g) into the said Section 2(h), it would in effect read as follows : "Sale price means the amount payable to a dealer as consideration for transfer of goods on hire purchase". The word "sale" occurring in Section 2(h) must have the meaning ascribed to it as in Section 2(g). When the word "sale" includes transfer of goods on hire purchase, then whatever is the amount which is paid/payable to the dealer on such a transfer would be included within the meaning of the expression "sale price" in Section 2(h). This being so, the sales tax authorities in the present cases were justified in including in the turnover of the appellants the hire charges as provided for in the hire purchase agreements.
| 0 | 4,443 | 186 |
### 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:
Instalment Supply case will not be subject to taxation hereafter and the problem of the same transaction being subjected to taxation at two different stages will not arise." 17. Learned senior counsel submits that by equating the two provisions of the Acts, we must give to the Sales Tax Act applicable in Delhi after 1st October, 1959 the same meaning as was given to the Gujarat Act. 18. It appears to us that the aforesaid observations were by way of an obiter. This Court was not called upon to consider the effect of the amendment made to the Delhi Act in 1959. This Court was only concerned with a question whether the State of Gujarat could levy any sales tax at the time when the hirer exercises his option to purchase the vehicle which happened to be in Gujarat at the time when the option was so exercised and despite the fact that sales tax had already been paid on the hire purchase transaction in Delhi earlier. The observations quoted above were merely to the effect that after the amendment there would be no case of taxation at two stages. The aforesaid decisions can be of no assistance to the appellants. 19. Our attention was also drawn to K.L. Johar and Company v. Deputy Commercial Tax Officer, 1965(2) SCR 112. We are unable to see how that case can be of any assistance. The Court there was concerned with the validity of Explanation I to Section 2(h) of the Madras General Sales Tax Act which purported to include a hire purchase transaction within the meaning of the term "sale". This Court held that Explanation I was beyond the competence of the State legislature and the same was accordingly struck down. The Court then dealt with the question as to whether a hire purchase agreement even ripened into a sale and if so when. It took note of the fact that a hire purchase agreement had two elements, namely, the element of bailment and the element of sale, in the sense that it contemplates an eventual sale. The Court came to the conclusion that a sale does take place and the same could be taxed when the hirer exercises the option to purchase the vehicle. With regard to the price at which the transaction would be regarded as having been entered into, the Court observed that the hire charges have to be excluded and the price of the vehicle worked out. The said decision, as we have already observed, can be of no assistance because the State of Madras, as it then was, had no legislative competence to seek to tax a hire purchase agreement to sales tax whereas in Delhi such a transaction could be subjected to tax and the same had been specifically upheld by this Court in the first case of Instalment Supply (P) Ltd. (supra). 20. It appears to us that the amendment of the Act on 1st October, 1959 has, in effect, not altered the position from what existed prior to that date and even after the amendment the principle laid down by this Court in the first case of Instalment Supply Co. (supra) would continue to hold good. 21. We would like to point out that Section 2(g) uses two expressions, namely, "transfer of property in goods" and "transfer of goods on hire-purchase". If the latter part relating to hire purchase had not been there, there can be little doubt that the principle enunciated by this Court in K.L. Johars case (supra) would have clearly been applicable, the hire purchase agreement itself would have been taxable and tax could have been levied only at that time when the option was exercised. This definition of the word "sale", the first part of which is in pari materia with the Sale of Goods Act, was expanded so as to include a transfer of goods on hire purchase or other system of payment by instalments. In the latter portion, in order that the tax is levied there is no requirement that the property in goods should be transferred. What is required is transfer of goods, unlike the first part of this definition which requires transfer of property in goods. The reason for this is very obvious. In the case of hire purchase there are two elements, namely, that of bailment and an element of sale and when a hire purchase agreement is entered into there is transfer of goods on hire purchase which would not include, at that point of time, any transfer of property in the said goods. If the contention of the learned senior counsel for the appellants is accepted, the effect of that would be that the latter portion of the definition could be otiose. If the definition of Section 2(g) was to include within its ambit only that transfer which takes place at the time of purchase when the option is exercised, then it would not have been necessary to widen the scope of the definition to include transfer of goods on hire purchase and to provide for it separately. 22. Coming to the definition of the expression "sale price", we find that if we substitute the defined meaning of the word "sale" occurring in Section 2(g) into the said Section 2(h), it would in effect read as follows : "Sale price means the amount payable to a dealer as consideration for transfer of goods on hire purchase". The word "sale" occurring in Section 2(h) must have the meaning ascribed to it as in Section 2(g). When the word "sale" includes transfer of goods on hire purchase, then whatever is the amount which is paid/payable to the dealer on such a transfer would be included within the meaning of the expression "sale price" in Section 2(h). This being so, the sales tax authorities in the present cases were justified in including in the turnover of the appellants the hire charges as provided for in the hire purchase agreements. 23. For the aforesaid reasons, we
### Response:
0
### Explanation:
Coming to the definition of the expression "sale price", we find that if we substitute the defined meaning of the word "sale" occurring in Section 2(g) into the said Section 2(h), it would in effect read as follows : "Sale price means the amount payable to a dealer as consideration for transfer of goods on hire purchase". The word "sale" occurring in Section 2(h) must have the meaning ascribed to it as in Section 2(g). When the word "sale" includes transfer of goods on hire purchase, then whatever is the amount which is paid/payable to the dealer on such a transfer would be included within the meaning of the expression "sale price" in Section 2(h). This being so, the sales tax authorities in the present cases were justified in including in the turnover of the appellants the hire charges as provided for in the hire purchase agreements.
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Delhi Development Authority Vs. Nalwa Sons Investment Ltd. and Ors
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clause (2) of the order passed by the Company Judge approving the scheme of demerger, as reproduced above, makes it amply clear that all property, assets, rights and powers in respect of the specified properties, including the subject plot, shall stand transferred to and vest in respondent No.2. Once it is a case of transfer, it must abide by the stipulation in clause 6(a) of the Lease Deed of taking previous consent in writing of the lessor (appellant) and to fulfill such terms and conditions as may be imposed, including to pay any unearned increase amount. We find force in the argument of the appellant that the fact situation of the present case would, in fact, be governed by clause 2(d) of the instructions which reads thus:?2. Where unearned increase is to be charged: (a) xxx xxx xxx (d) In case where a private limited company/public limited company separately floating a new company although Directors may be the same and the name of old company has not changed and if still exists as it was, 50% unearned increase will be chargeable in such cases.?This clause plainly applies to the present case. The demand of unearned increase from the respondents is founded on that basis. The High Court misinterpreted the said clause and erroneously opined that it is not applicable to a case of demerger of a public limited company. 14. The principal clause is clause 6(a) of the Lease Deed. The clause referred to in the instructions is equally significant. Indeed, the latter merely provides for the mechanism to recover the unearned increase from the original lessee. The fact that the same group of persons or directors/ promoters/shareholders would be and are associated with the transferee company does not cease to be a case of transfer or exempted from payment of UEI, as envisaged in clause 6(a) of the Lease Deed. Rather, clause 2(d) of the policy, noted above, makes it expressly clear that unearned increase be charged irrespective of the fact that the directors in both companies are common and the old (parent) company has not changed its name. 15. The fact that it was a case of transfer is reinforced from the order of demerger passed by the Company Judge and once it is a case of transfer, coupled with the fact that the respondents are not covered within the categories specified in clauses 1(a) to 1(d) of the policy of the appellant, reproduced in paragraph 5 above, they would be liable to pay unearned increase (UEI) in the manner specified in clause 6(a) of the Lease Deed. The obligation to pay UEI does not flow only from the instructions issued by the competent authority of the appellant but primarily from the stipulation in the Perpetual Lease Deed in the form of clause 6(a). Viewed thus, the Division Bench of the High Court committed a manifest error in allowing the appeal and setting aside the judgment of the learned Single Judge, who had rightly dismissed the writ petition and upheld the demand notice and the show cause notice calling upon the respondents to pay the unearned increase amount in terms of clause 6(a) of the Perpetual Lease Deed. That demand was final and binding on the respondents, so long as the stipulation in the form of clause 6(a) of the Perpetual Lease was in force. 16. Reverting to the decisions pressed into service by the appellant, to wit, Parasram Harnand Rao (supra), Cox & Kings Ltd. (supra), M/s. General Radio and Appliances Co. Ltd. (supra), Indian Saving Products Ltd. (supra), and Singer India Ltd. (supra), dealt with the effect of such a transfer which results in unlawful subletting within the meaning of the concerned rent legislation. In the present case, the fact that it is a case of transfer of the subject plot from the lessee (respondent No.1), a public limited company, to the transferee (respondent No.2), another public limited company, is indisputable. That is reinforced from the order of the Company Judge, formulating the scheme for demerger of the lessee company. It is not an involuntary transfer as such. The only issue is whether, by virtue of the fact that the affairs of the transferee company (respondent No.2) are controlled by the same set of directors/shareholders of the original lessee (respondent No.1) with about 98.62% of the shares of the transferee company (respondent No.2), that would or would not absolve the respondent No.1 of its obligations under the Lease Deed. The answer is an emphatic ?No?. For, under clause 6(a) of the Lease Deed, it is incumbent to seek previous consent in writing from the lessor (appellant) and to abide by the terms and conditions specified by the appellant in that behalf, including the payment of unearned increase determined as per the said clause. Going by the plain language of clause 6(a) of the Lease Deed, there is no reason to extricate the respondents from the obligation of the lessee (transferor) flowing therefrom. 17. Having said thus, the decisions pressed into service by the respondents in K. Devarajulu Naidu (supra), Madras Bangalore Transport Co. (supra), State of U.P. and Ors. (supra), and New Horizons Limited (supra), will be of no avail. The same in no way contradict the stand of the appellant that as a consequence of a demerger, being a case of transfer of the subject property in terms of the order of demerger passed by the Company Judge, the rigours of clause 6(a) of the Lease Deed read with the policy of the Corporation/Authority regarding levy and determination of UEI would clearly apply proprio vigore, irrespective of the fact that the control of the newly established public limited company (respondent No.2) is with the directors of the lessee (respondent No.1), a public limited company, or that the transfer of the subject property was without consideration. Thus understood, the grounds on which the demand letter dated 5 th August, 2010, and the show cause notice dated 13 th January, 2011, have been challenged, cannot be countenanced.
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0[ds]11. For answering the seminal question, we must first advert to the obligation of respondent No.1 springing from thestipulation in the perpetual Lease Deed. Clause 6(a), as extracted in paragraph 3 above, envisages a bar to sell, transfer, assign or otherwise part with the possession of the whole or any part of the commercial plot, except with the previous consent in writing of the lessor (appellant), which the appellant would be entitled to refuse in its absolute discretion. While granting consent in terms of the proviso to clause 6(a), it is open to the appellant to impose such terms and conditions as may be deemed appropriate and claim and recover a portion of the unearned increase in the value of the commercial plot, being 50% of the unearned increase. The decision of the appellant in this behalf is final and binding upon the original lessee (respondent No.1). The amount towards the unearned increase is computed on the basis of the difference between the premium paid and the market value of the commercial plot. In doing so, the fact that the transfer under consideration did not involve any consideration amount or the value paid by the transferee is below the market value, would not inhibit recovery of 50% of the prescribed unearned increase amount on actual or, in a given case, notional basis. This is the plain meaning of the stipulation. This position is reinforced from the contemporaneous instructions issued by the competent authority of the appellant about the manner in which the unearned increase should be charged and from whom such charges should be recovered. That can be discerned from the instructions dated 6 th September, 1988.Indeed, the said instructions advert to the category of persons from whom no unearned increase should be charged, despite being a case of transfer of the property as mentioned in clause (1) thereof. The Division Bench of the High Court has relied upon the category mentioned in clause (1)(b). The same readso unearned increase to beIn case of conversion of partnership firm into private limited company comprising original partners asthe plain language of this clause, we fail to fathom how the said clause will be of any avail to the respondents. For, we are not dealing with a case of conversion of a partnership firm into a private limited company as such. The fact that the instructions extricate the category of transfers referred to in clause (1) of the instructions from the liability of paying an unearned increase despite being a case of transfer, cannot be the basis to exclude the other category of transfers/persons not specifically covered by clause (1), such as the case of present respondents. That is a policy matter. The respondents were fully aware about the existence of such a policy. That policy has not been challenged in the writ petition. Concededly, the reliefs claimed in the writ petition were limited to quashing of the demand letter dated 5 th August, 2010 and notice dated 31 st January, 2011, demanding unearned increase; and to direct the appellant to convert the said property from leasehold to freehold in favour of respondent No.2, without charging any unearned increase. The reliefs are founded on the assertion that the transfer was not to any outsider, much less for any consideration.In the first place, it is not open to the respondents to contend that the arrangement and demerger scheme does not result in transfer of the subject plot from the original lessee (respondent No.1) to respondent No.2. Inasmuch as, clause (2) of the order passed by the Company Judge approving the scheme of demerger, as reproduced above, makes it amply clear that all property, assets, rights and powers in respect of the specified properties, including the subject plot, shall stand transferred to and vest in respondent No.2. Once it is a case of transfer, it must abide by the stipulation in clause 6(a) of the Lease Deed of taking previous consent in writing of the lessor (appellant) and to fulfill such terms and conditions as may be imposed, including to pay any unearned increase amount. We find force in the argument of the appellant that the fact situation of the present case would, in fact, be governed by clause 2(d) of the instructions which readse unearned increase is to beIn case where a private limited company/public limited company separately floating a new company although Directors may be the same and the name of old company has not changed and if still exists as it was, 50% unearned increase will be chargeable in suchclause plainly applies to the present case. The demand of unearned increase from the respondents is founded on that basis. The High Court misinterpreted the said clause and erroneously opined that it is not applicable to a case of demerger of a public limited company.The principal clause is clause 6(a) of the Lease Deed. The clause referred to in the instructions is equally significant. Indeed, the latter merely provides for the mechanism to recover the unearned increase from the original lessee. The fact that the same group of persons or directors/ promoters/shareholders would be and are associated with the transferee company does not cease to be a case of transfer or exempted from payment of UEI, as envisaged in clause 6(a) of the Lease Deed. Rather, clause 2(d) of the policy, noted above, makes it expressly clear that unearned increase be charged irrespective of the fact that the directors in both companies are common and the old (parent) company has not changed its name.The fact that it was a case of transfer is reinforced from the order of demerger passed by the Company Judge and once it is a case of transfer, coupled with the fact that the respondents are not covered within the categories specified in clauses 1(a) to 1(d) of the policy of the appellant, reproduced in paragraph 5 above, they would be liable to pay unearned increase (UEI) in the manner specified in clause 6(a) of the Lease Deed. The obligation to pay UEI does not flow only from the instructions issued by the competent authority of the appellant but primarily from the stipulation in the Perpetual Lease Deed in the form of clause 6(a). Viewed thus, the Division Bench of the High Court committed a manifest error in allowing the appeal and setting aside the judgment of the learned Single Judge, who had rightly dismissed the writ petition and upheld the demand notice and the show cause notice calling upon the respondents to pay the unearned increase amount in terms of clause 6(a) of the Perpetual Lease Deed. That demand was final and binding on the respondents, so long as the stipulation in the form of clause 6(a) of the Perpetual Lease was in force.Reverting to the decisions pressed into service by the appellant, to wit, Parasram Harnand Rao (supra), Cox & Kings Ltd. (supra), M/s. General Radio and Appliances Co. Ltd. (supra), Indian Saving Products Ltd. (supra), and Singer India Ltd. (supra), dealt with the effect of such a transfer which results in unlawful subletting within the meaning of the concerned rent legislation. In the present case, the fact that it is a case of transfer of the subject plot from the lessee (respondent No.1), a public limited company, to the transferee (respondent No.2), another public limited company, is indisputable. That is reinforced from the order of the Company Judge, formulating the scheme for demerger of the lessee company. It is not an involuntary transfer as such. The only issue is whether, by virtue of the fact that the affairs of the transferee company (respondent No.2) are controlled by the same set of directors/shareholders of the original lessee (respondent No.1) with about 98.62% of the shares of the transferee company (respondent No.2), that would or would not absolve the respondent No.1 of its obligations under the Lease Deed. The answer is an emphatic ?No?. For, under clause 6(a) of the Lease Deed, it is incumbent to seek previous consent in writing from the lessor (appellant) and to abide by the terms and conditions specified by the appellant in that behalf, including the payment of unearned increase determined as per the said clause. Going by the plain language of clause 6(a) of the Lease Deed, there is no reason to extricate the respondents from the obligation of the lessee (transferor) flowing therefrom.Having said thus, the decisions pressed into service by the respondents in K. Devarajulu Naidu (supra), Madras Bangalore Transport Co. (supra), State of U.P. and Ors. (supra), and New Horizons Limited (supra), will be of no avail. The same in no way contradict the stand of the appellant that as a consequence of a demerger, being a case of transfer of the subject property in terms of the order of demerger passed by the Company Judge, the rigours of clause 6(a) of the Lease Deed read with the policy of the Corporation/Authority regarding levy and determination of UEI would clearly apply proprio vigore, irrespective of the fact that the control of the newly established public limited company (respondent No.2) is with the directors of the lessee (respondent No.1), a public limited company, or that the transfer of the subject property was without consideration. Thus understood, the grounds on which the demand letter dated 5 th August, 2010, and the show cause notice dated 13 th January, 2011, have been challenged, cannot be countenanced.
| 0 | 6,469 | 1,815 |
### 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:
clause (2) of the order passed by the Company Judge approving the scheme of demerger, as reproduced above, makes it amply clear that all property, assets, rights and powers in respect of the specified properties, including the subject plot, shall stand transferred to and vest in respondent No.2. Once it is a case of transfer, it must abide by the stipulation in clause 6(a) of the Lease Deed of taking previous consent in writing of the lessor (appellant) and to fulfill such terms and conditions as may be imposed, including to pay any unearned increase amount. We find force in the argument of the appellant that the fact situation of the present case would, in fact, be governed by clause 2(d) of the instructions which reads thus:?2. Where unearned increase is to be charged: (a) xxx xxx xxx (d) In case where a private limited company/public limited company separately floating a new company although Directors may be the same and the name of old company has not changed and if still exists as it was, 50% unearned increase will be chargeable in such cases.?This clause plainly applies to the present case. The demand of unearned increase from the respondents is founded on that basis. The High Court misinterpreted the said clause and erroneously opined that it is not applicable to a case of demerger of a public limited company. 14. The principal clause is clause 6(a) of the Lease Deed. The clause referred to in the instructions is equally significant. Indeed, the latter merely provides for the mechanism to recover the unearned increase from the original lessee. The fact that the same group of persons or directors/ promoters/shareholders would be and are associated with the transferee company does not cease to be a case of transfer or exempted from payment of UEI, as envisaged in clause 6(a) of the Lease Deed. Rather, clause 2(d) of the policy, noted above, makes it expressly clear that unearned increase be charged irrespective of the fact that the directors in both companies are common and the old (parent) company has not changed its name. 15. The fact that it was a case of transfer is reinforced from the order of demerger passed by the Company Judge and once it is a case of transfer, coupled with the fact that the respondents are not covered within the categories specified in clauses 1(a) to 1(d) of the policy of the appellant, reproduced in paragraph 5 above, they would be liable to pay unearned increase (UEI) in the manner specified in clause 6(a) of the Lease Deed. The obligation to pay UEI does not flow only from the instructions issued by the competent authority of the appellant but primarily from the stipulation in the Perpetual Lease Deed in the form of clause 6(a). Viewed thus, the Division Bench of the High Court committed a manifest error in allowing the appeal and setting aside the judgment of the learned Single Judge, who had rightly dismissed the writ petition and upheld the demand notice and the show cause notice calling upon the respondents to pay the unearned increase amount in terms of clause 6(a) of the Perpetual Lease Deed. That demand was final and binding on the respondents, so long as the stipulation in the form of clause 6(a) of the Perpetual Lease was in force. 16. Reverting to the decisions pressed into service by the appellant, to wit, Parasram Harnand Rao (supra), Cox & Kings Ltd. (supra), M/s. General Radio and Appliances Co. Ltd. (supra), Indian Saving Products Ltd. (supra), and Singer India Ltd. (supra), dealt with the effect of such a transfer which results in unlawful subletting within the meaning of the concerned rent legislation. In the present case, the fact that it is a case of transfer of the subject plot from the lessee (respondent No.1), a public limited company, to the transferee (respondent No.2), another public limited company, is indisputable. That is reinforced from the order of the Company Judge, formulating the scheme for demerger of the lessee company. It is not an involuntary transfer as such. The only issue is whether, by virtue of the fact that the affairs of the transferee company (respondent No.2) are controlled by the same set of directors/shareholders of the original lessee (respondent No.1) with about 98.62% of the shares of the transferee company (respondent No.2), that would or would not absolve the respondent No.1 of its obligations under the Lease Deed. The answer is an emphatic ?No?. For, under clause 6(a) of the Lease Deed, it is incumbent to seek previous consent in writing from the lessor (appellant) and to abide by the terms and conditions specified by the appellant in that behalf, including the payment of unearned increase determined as per the said clause. Going by the plain language of clause 6(a) of the Lease Deed, there is no reason to extricate the respondents from the obligation of the lessee (transferor) flowing therefrom. 17. Having said thus, the decisions pressed into service by the respondents in K. Devarajulu Naidu (supra), Madras Bangalore Transport Co. (supra), State of U.P. and Ors. (supra), and New Horizons Limited (supra), will be of no avail. The same in no way contradict the stand of the appellant that as a consequence of a demerger, being a case of transfer of the subject property in terms of the order of demerger passed by the Company Judge, the rigours of clause 6(a) of the Lease Deed read with the policy of the Corporation/Authority regarding levy and determination of UEI would clearly apply proprio vigore, irrespective of the fact that the control of the newly established public limited company (respondent No.2) is with the directors of the lessee (respondent No.1), a public limited company, or that the transfer of the subject property was without consideration. Thus understood, the grounds on which the demand letter dated 5 th August, 2010, and the show cause notice dated 13 th January, 2011, have been challenged, cannot be countenanced.
### Response:
0
### Explanation:
not result in transfer of the subject plot from the original lessee (respondent No.1) to respondent No.2. Inasmuch as, clause (2) of the order passed by the Company Judge approving the scheme of demerger, as reproduced above, makes it amply clear that all property, assets, rights and powers in respect of the specified properties, including the subject plot, shall stand transferred to and vest in respondent No.2. Once it is a case of transfer, it must abide by the stipulation in clause 6(a) of the Lease Deed of taking previous consent in writing of the lessor (appellant) and to fulfill such terms and conditions as may be imposed, including to pay any unearned increase amount. We find force in the argument of the appellant that the fact situation of the present case would, in fact, be governed by clause 2(d) of the instructions which readse unearned increase is to beIn case where a private limited company/public limited company separately floating a new company although Directors may be the same and the name of old company has not changed and if still exists as it was, 50% unearned increase will be chargeable in suchclause plainly applies to the present case. The demand of unearned increase from the respondents is founded on that basis. The High Court misinterpreted the said clause and erroneously opined that it is not applicable to a case of demerger of a public limited company.The principal clause is clause 6(a) of the Lease Deed. The clause referred to in the instructions is equally significant. Indeed, the latter merely provides for the mechanism to recover the unearned increase from the original lessee. The fact that the same group of persons or directors/ promoters/shareholders would be and are associated with the transferee company does not cease to be a case of transfer or exempted from payment of UEI, as envisaged in clause 6(a) of the Lease Deed. Rather, clause 2(d) of the policy, noted above, makes it expressly clear that unearned increase be charged irrespective of the fact that the directors in both companies are common and the old (parent) company has not changed its name.The fact that it was a case of transfer is reinforced from the order of demerger passed by the Company Judge and once it is a case of transfer, coupled with the fact that the respondents are not covered within the categories specified in clauses 1(a) to 1(d) of the policy of the appellant, reproduced in paragraph 5 above, they would be liable to pay unearned increase (UEI) in the manner specified in clause 6(a) of the Lease Deed. The obligation to pay UEI does not flow only from the instructions issued by the competent authority of the appellant but primarily from the stipulation in the Perpetual Lease Deed in the form of clause 6(a). Viewed thus, the Division Bench of the High Court committed a manifest error in allowing the appeal and setting aside the judgment of the learned Single Judge, who had rightly dismissed the writ petition and upheld the demand notice and the show cause notice calling upon the respondents to pay the unearned increase amount in terms of clause 6(a) of the Perpetual Lease Deed. That demand was final and binding on the respondents, so long as the stipulation in the form of clause 6(a) of the Perpetual Lease was in force.Reverting to the decisions pressed into service by the appellant, to wit, Parasram Harnand Rao (supra), Cox & Kings Ltd. (supra), M/s. General Radio and Appliances Co. Ltd. (supra), Indian Saving Products Ltd. (supra), and Singer India Ltd. (supra), dealt with the effect of such a transfer which results in unlawful subletting within the meaning of the concerned rent legislation. In the present case, the fact that it is a case of transfer of the subject plot from the lessee (respondent No.1), a public limited company, to the transferee (respondent No.2), another public limited company, is indisputable. That is reinforced from the order of the Company Judge, formulating the scheme for demerger of the lessee company. It is not an involuntary transfer as such. The only issue is whether, by virtue of the fact that the affairs of the transferee company (respondent No.2) are controlled by the same set of directors/shareholders of the original lessee (respondent No.1) with about 98.62% of the shares of the transferee company (respondent No.2), that would or would not absolve the respondent No.1 of its obligations under the Lease Deed. The answer is an emphatic ?No?. For, under clause 6(a) of the Lease Deed, it is incumbent to seek previous consent in writing from the lessor (appellant) and to abide by the terms and conditions specified by the appellant in that behalf, including the payment of unearned increase determined as per the said clause. Going by the plain language of clause 6(a) of the Lease Deed, there is no reason to extricate the respondents from the obligation of the lessee (transferor) flowing therefrom.Having said thus, the decisions pressed into service by the respondents in K. Devarajulu Naidu (supra), Madras Bangalore Transport Co. (supra), State of U.P. and Ors. (supra), and New Horizons Limited (supra), will be of no avail. The same in no way contradict the stand of the appellant that as a consequence of a demerger, being a case of transfer of the subject property in terms of the order of demerger passed by the Company Judge, the rigours of clause 6(a) of the Lease Deed read with the policy of the Corporation/Authority regarding levy and determination of UEI would clearly apply proprio vigore, irrespective of the fact that the control of the newly established public limited company (respondent No.2) is with the directors of the lessee (respondent No.1), a public limited company, or that the transfer of the subject property was without consideration. Thus understood, the grounds on which the demand letter dated 5 th August, 2010, and the show cause notice dated 13 th January, 2011, have been challenged, cannot be countenanced.
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Deputy Commnr., Income Tax, Baroda Vs. Gujarat Alkalies & Chemicals Ltd
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Kapadia, J. 1. These civil appeals are filed by the Department against decision dated 25.4.01 in Tax Appeal Nos.39 and 40 of 2001 delivered by Gujarat High Court. 2. Two questions of law arise for determination in these civil appeals which are as follow:(1) Whether "commitment charges" can be allowed as deduction under Section 36(1)(iii) of the Income-tax Act, 1961?(2) Whether "charges" paid to COFACE is similar to payment of interest under Section 36(1)(iii) of the Income-tax Act, 1961 and, therefore, has to be allowed as deduction? 3. Regarding question No.(1), we may state that assessee had borrowed Rs.30 crores (approximately) from IDBI which in turn was refinanced by COFACE which foreign company had charged interest, commitment charges and insurance charges payable by the assessee. The said "commitment charges" was upfront payment. We have also examined the contract between IDBI and the assessee. In the case of Addl. Commr. of Income-tax v. Akkamamba Textiles Ltd. - (1997) 227 ITR 464 , this Court has held that commission paid by the assessee to the banker and the insurance company was admissible deduction under Section 37 of the Income-tax Act, 1961. To the same effect is the judgment of this Court in the case Commr. of Income-tax v. Sivakami Mills Ltd. - (1997) 227 ITR 465. For the aforestated reasons, we answer question No.(1) in favour of the assessee and against the Department. We may clarify that both the above judgments allows deductions under Section 37 of the 1961 Act and not under Section 36(1)(iii) of the 1961 Act. In this case, the Tribunal has allowed the claim under Section 37 and not only Section 36(1)(iii), hence there is no infirmity therein. 4. As regards question No.(2) is concerned it may be stated that the assessee established phosphoric Acid Project as an extension to its present business activities and for that purpose obtained foreign currency loan from IDBI which in turn was refinanced by COFACE subject to the assessee paying finance charges to COFACE which according to the assessee was similar to payment of interest. The Department disallowed the said item on the ground that finance charges paid to COFACE on foreign currency loan was in the nature of interest and commitment charges and since the charges have been paid in relation to the project of manufacturing phosphoric acid which did not commence production during the assessment year under consideration, the expenses incurred were capital in nature. The Department also placed reliance in this connection on Explanation 8 to Section 43(1) of the Income-tax Act, 1961. On facts and circumstances of this case, once the Department equated the charges payable to COFACE with interest, our judgment in the case of Dy. Commr. of Income Tax, Ahmedabad v. M/s. Core Health Care Ltd. in Civil Appeal Nos.3952-55 of 2002 comes in. Accordingly, the said question No.(2) is also answered in favour of the assessee and against the Department. 5. Before concluding, we may also mention that in this case the finance charges paid by the assessee to COFACE have also been equated by the Department with commitment charges which, as stated above, are held to be revenue expenditure and deductible under Section 37 of the Income-tax Act, 1961 [See: Akkamamba Textiles Ltd. (supra) and Sivakami Mills Ltd. (supra)]. Therefore, on either counts the above question No.(2) is answered in favour of the assessee and against the Department. 6. For the aforestated reasons, the
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0[ds]Regarding question No.(1), we may state that assessee had borrowed Rs.30 crores (approximately) from IDBI which in turn was refinanced by COFACE which foreign company had charged interest, commitment charges and insurance charges payable by the assessee. The said "commitment charges" was upfront payment. We have also examined the contract between IDBI and the assessee. In the case of Addl. Commr. of Income-tax v. Akkamamba Textiles Ltd. - (1997) 227 ITR 464 , this Court has held that commission paid by the assessee to the banker and the insurance company was admissible deduction under Section 37 of the Income-tax Act, 1961. To the same effect is the judgment of this Court in the case Commr. of Income-tax v. Sivakami Mills Ltd. - (1997) 227 ITR 465. For the aforestated reasons, we answer question No.(1) in favour of the assessee and against the Department. We may clarify that both the above judgments allows deductions under Section 37 of the 1961 Act and not under Section 36(1)(iii) of the 1961 Act. In this case, the Tribunal has allowed the claim under Section 37 and not only Section 36(1)(iii), hence there is no infirmityregards question No.(2) is concerned it may be stated that the assessee established phosphoric Acid Project as an extension to its present business activities and for that purpose obtained foreign currency loan from IDBI which in turn was refinanced by COFACE subject to the assessee paying finance charges to COFACE which according to the assessee was similar to payment of interest. The Department disallowed the said item on the ground that finance charges paid to COFACE on foreign currency loan was in the nature of interest and commitment charges and since the charges have been paid in relation to the project of manufacturing phosphoric acid which did not commence production during the assessment year under consideration, the expenses incurred were capital in nature. The Department also placed reliance in this connection on Explanation 8 to Section 43(1) of the Income-tax Act, 1961. On facts and circumstances of this case, once the Department equated the charges payable to COFACE with interest, our judgment in the case of Dy. Commr. of Income Tax, Ahmedabad v. M/s. Core Health Care Ltd. in Civil Appeal Nos.3952-55 of 2002 comes in. Accordingly, the said question No.(2) is also answered in favour of the assessee and against themay also mention that in this case the finance charges paid by the assessee to COFACE have also been equated by the Department with commitment charges which, as stated above, are held to be revenue expenditure and deductible under Section 37 of the Income-tax Act, 1961 [See: Akkamamba Textiles Ltd. (supra) and Sivakami Mills Ltd. (supra)]. Therefore, on either counts the above question No.(2) is answered in favour of the assessee and against the Department.
| 0 | 697 | 555 |
### 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:
Kapadia, J. 1. These civil appeals are filed by the Department against decision dated 25.4.01 in Tax Appeal Nos.39 and 40 of 2001 delivered by Gujarat High Court. 2. Two questions of law arise for determination in these civil appeals which are as follow:(1) Whether "commitment charges" can be allowed as deduction under Section 36(1)(iii) of the Income-tax Act, 1961?(2) Whether "charges" paid to COFACE is similar to payment of interest under Section 36(1)(iii) of the Income-tax Act, 1961 and, therefore, has to be allowed as deduction? 3. Regarding question No.(1), we may state that assessee had borrowed Rs.30 crores (approximately) from IDBI which in turn was refinanced by COFACE which foreign company had charged interest, commitment charges and insurance charges payable by the assessee. The said "commitment charges" was upfront payment. We have also examined the contract between IDBI and the assessee. In the case of Addl. Commr. of Income-tax v. Akkamamba Textiles Ltd. - (1997) 227 ITR 464 , this Court has held that commission paid by the assessee to the banker and the insurance company was admissible deduction under Section 37 of the Income-tax Act, 1961. To the same effect is the judgment of this Court in the case Commr. of Income-tax v. Sivakami Mills Ltd. - (1997) 227 ITR 465. For the aforestated reasons, we answer question No.(1) in favour of the assessee and against the Department. We may clarify that both the above judgments allows deductions under Section 37 of the 1961 Act and not under Section 36(1)(iii) of the 1961 Act. In this case, the Tribunal has allowed the claim under Section 37 and not only Section 36(1)(iii), hence there is no infirmity therein. 4. As regards question No.(2) is concerned it may be stated that the assessee established phosphoric Acid Project as an extension to its present business activities and for that purpose obtained foreign currency loan from IDBI which in turn was refinanced by COFACE subject to the assessee paying finance charges to COFACE which according to the assessee was similar to payment of interest. The Department disallowed the said item on the ground that finance charges paid to COFACE on foreign currency loan was in the nature of interest and commitment charges and since the charges have been paid in relation to the project of manufacturing phosphoric acid which did not commence production during the assessment year under consideration, the expenses incurred were capital in nature. The Department also placed reliance in this connection on Explanation 8 to Section 43(1) of the Income-tax Act, 1961. On facts and circumstances of this case, once the Department equated the charges payable to COFACE with interest, our judgment in the case of Dy. Commr. of Income Tax, Ahmedabad v. M/s. Core Health Care Ltd. in Civil Appeal Nos.3952-55 of 2002 comes in. Accordingly, the said question No.(2) is also answered in favour of the assessee and against the Department. 5. Before concluding, we may also mention that in this case the finance charges paid by the assessee to COFACE have also been equated by the Department with commitment charges which, as stated above, are held to be revenue expenditure and deductible under Section 37 of the Income-tax Act, 1961 [See: Akkamamba Textiles Ltd. (supra) and Sivakami Mills Ltd. (supra)]. Therefore, on either counts the above question No.(2) is answered in favour of the assessee and against the Department. 6. For the aforestated reasons, the
### Response:
0
### Explanation:
Regarding question No.(1), we may state that assessee had borrowed Rs.30 crores (approximately) from IDBI which in turn was refinanced by COFACE which foreign company had charged interest, commitment charges and insurance charges payable by the assessee. The said "commitment charges" was upfront payment. We have also examined the contract between IDBI and the assessee. In the case of Addl. Commr. of Income-tax v. Akkamamba Textiles Ltd. - (1997) 227 ITR 464 , this Court has held that commission paid by the assessee to the banker and the insurance company was admissible deduction under Section 37 of the Income-tax Act, 1961. To the same effect is the judgment of this Court in the case Commr. of Income-tax v. Sivakami Mills Ltd. - (1997) 227 ITR 465. For the aforestated reasons, we answer question No.(1) in favour of the assessee and against the Department. We may clarify that both the above judgments allows deductions under Section 37 of the 1961 Act and not under Section 36(1)(iii) of the 1961 Act. In this case, the Tribunal has allowed the claim under Section 37 and not only Section 36(1)(iii), hence there is no infirmityregards question No.(2) is concerned it may be stated that the assessee established phosphoric Acid Project as an extension to its present business activities and for that purpose obtained foreign currency loan from IDBI which in turn was refinanced by COFACE subject to the assessee paying finance charges to COFACE which according to the assessee was similar to payment of interest. The Department disallowed the said item on the ground that finance charges paid to COFACE on foreign currency loan was in the nature of interest and commitment charges and since the charges have been paid in relation to the project of manufacturing phosphoric acid which did not commence production during the assessment year under consideration, the expenses incurred were capital in nature. The Department also placed reliance in this connection on Explanation 8 to Section 43(1) of the Income-tax Act, 1961. On facts and circumstances of this case, once the Department equated the charges payable to COFACE with interest, our judgment in the case of Dy. Commr. of Income Tax, Ahmedabad v. M/s. Core Health Care Ltd. in Civil Appeal Nos.3952-55 of 2002 comes in. Accordingly, the said question No.(2) is also answered in favour of the assessee and against themay also mention that in this case the finance charges paid by the assessee to COFACE have also been equated by the Department with commitment charges which, as stated above, are held to be revenue expenditure and deductible under Section 37 of the Income-tax Act, 1961 [See: Akkamamba Textiles Ltd. (supra) and Sivakami Mills Ltd. (supra)]. Therefore, on either counts the above question No.(2) is answered in favour of the assessee and against the Department.
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Assam Urban Water Supply & Sew. Board Vs. M/S. Subash Projects & Marketing Ltd
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34 provides that on sufficient cause being shown, the court may entertain the application for setting aside the award after the period of three months and within a further period of 30 days but not thereafter. 8. In Popular Construction Co. (supra), this Court has held that an application for setting aside an award filed beyond the period mentioned in Section 34(3) would not be an application “in accordance with sub-section (3) as required under Section 34(1) of the 1996 Act” and Section 5 of the 1963 Act has no application to such application. In para 12 of the report, it was held in Popular Construction Co. (supra) thus:- "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of the Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result" 9. Recently, in the State of Maharashtra Vs. Hindustan Construction Company Limited ((2010) 4 SCC 518 ), a two Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) emphasised the mandatory nature of the limit to the extension of the period provided in proviso to Section 34(3) and held that an application for setting aside arbitral award under Section 34 of the 1996 Act has to be made within the time prescribed under sub-section (3) of Section 34, i.e., within three months and a further period of 30 days on sufficient cause being shown and not thereafter. 10. Section 43(1) of the 1996 Act provides that the 1963 Act shall apply to arbitrations as it applies to proceedings in court. The 1963 Act is thus applicable to the matters of arbitration covered by the 1996 Act save and except to the extent its applicability has been excluded by virtue of the express provision contained in Section 34(3) of the 1996 Act. 11. The facts in the present case are peculiar. The arbitral awards were received by the appellants on August 26, 2003. No application for setting aside the arbitral awards was made by the appellants before elapse of three months from the receipt thereof. As a matter of fact, three months from the date of the receipt of the arbitral award by the appellants expired on November 26, 2003. The District Court had Christmas vacation for the period from December 25, 2003 to January 1, 2004. On reopening of the court, i.e., on January 2, 2004, admittedly, the appellants made applications for setting aside those awards under Section 34 of the 1996 Act. If the period during which the District Court, Kamrup, Guwahati, remained closed during Christmas vacation, 2003 is extended and the appellants get benefit of that period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on the applicability of Section 4 of the 1963 Act. The question, therefore, that falls for our determination is - whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts. 12. Section 4 of the 1963 Act reads as under :- "4. Expiry of prescribed period when court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." 13. The above Section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?Section 2(j) of the 1963 Act defines period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 14. Seen thus, the applications made by the appellants on January 2, 2004, for setting aside the arbitral award dated August 26, 2003 were liable to be dismissed and have rightly been dismissed by the District Judge, Kamrup, Guwahati, as time barred. 15. The dismissal of the Arbitration Appeals (6 of 2004 and 7 of 2004) by the High Court, thus, cannot be legally flawed for the reasons we have indicated above.
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0[ds]11. The facts in the present case are peculiar. The arbitral awards were received by the appellants on August 26, 2003. No application for setting aside the arbitral awards was made by the appellants before elapse of three months from the receipt thereof. As a matter of fact, three months from the date of the receipt of the arbitral award by the appellants expired on November 26, 2003. The District Court had Christmas vacation for the period from December 25, 2003 to January 1, 2004. On reopening of the court, i.e., on January 2, 2004, admittedly, the appellants made applications for setting aside those awards under Section 34 of the 1996 Act. If the period during which the District Court, Kamrup, Guwahati, remained closed during Christmas vacation, 2003 is extended and the appellants get benefit of that period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on the applicability of Section 4 of the 1963 Act.question, therefore, that falls for our determination is - whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts.Section 4 of the 1963 Act reads as underExpiry of prescribed period when court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.The above Section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?Section 2(j) of the 1963 Act defines period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.
| 0 | 1,774 | 608 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
34 provides that on sufficient cause being shown, the court may entertain the application for setting aside the award after the period of three months and within a further period of 30 days but not thereafter. 8. In Popular Construction Co. (supra), this Court has held that an application for setting aside an award filed beyond the period mentioned in Section 34(3) would not be an application “in accordance with sub-section (3) as required under Section 34(1) of the 1996 Act” and Section 5 of the 1963 Act has no application to such application. In para 12 of the report, it was held in Popular Construction Co. (supra) thus:- "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of the Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result" 9. Recently, in the State of Maharashtra Vs. Hindustan Construction Company Limited ((2010) 4 SCC 518 ), a two Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) emphasised the mandatory nature of the limit to the extension of the period provided in proviso to Section 34(3) and held that an application for setting aside arbitral award under Section 34 of the 1996 Act has to be made within the time prescribed under sub-section (3) of Section 34, i.e., within three months and a further period of 30 days on sufficient cause being shown and not thereafter. 10. Section 43(1) of the 1996 Act provides that the 1963 Act shall apply to arbitrations as it applies to proceedings in court. The 1963 Act is thus applicable to the matters of arbitration covered by the 1996 Act save and except to the extent its applicability has been excluded by virtue of the express provision contained in Section 34(3) of the 1996 Act. 11. The facts in the present case are peculiar. The arbitral awards were received by the appellants on August 26, 2003. No application for setting aside the arbitral awards was made by the appellants before elapse of three months from the receipt thereof. As a matter of fact, three months from the date of the receipt of the arbitral award by the appellants expired on November 26, 2003. The District Court had Christmas vacation for the period from December 25, 2003 to January 1, 2004. On reopening of the court, i.e., on January 2, 2004, admittedly, the appellants made applications for setting aside those awards under Section 34 of the 1996 Act. If the period during which the District Court, Kamrup, Guwahati, remained closed during Christmas vacation, 2003 is extended and the appellants get benefit of that period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on the applicability of Section 4 of the 1963 Act. The question, therefore, that falls for our determination is - whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts. 12. Section 4 of the 1963 Act reads as under :- "4. Expiry of prescribed period when court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." 13. The above Section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?Section 2(j) of the 1963 Act defines period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 14. Seen thus, the applications made by the appellants on January 2, 2004, for setting aside the arbitral award dated August 26, 2003 were liable to be dismissed and have rightly been dismissed by the District Judge, Kamrup, Guwahati, as time barred. 15. The dismissal of the Arbitration Appeals (6 of 2004 and 7 of 2004) by the High Court, thus, cannot be legally flawed for the reasons we have indicated above.
### Response:
0
### Explanation:
11. The facts in the present case are peculiar. The arbitral awards were received by the appellants on August 26, 2003. No application for setting aside the arbitral awards was made by the appellants before elapse of three months from the receipt thereof. As a matter of fact, three months from the date of the receipt of the arbitral award by the appellants expired on November 26, 2003. The District Court had Christmas vacation for the period from December 25, 2003 to January 1, 2004. On reopening of the court, i.e., on January 2, 2004, admittedly, the appellants made applications for setting aside those awards under Section 34 of the 1996 Act. If the period during which the District Court, Kamrup, Guwahati, remained closed during Christmas vacation, 2003 is extended and the appellants get benefit of that period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on the applicability of Section 4 of the 1963 Act.question, therefore, that falls for our determination is - whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts.Section 4 of the 1963 Act reads as underExpiry of prescribed period when court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.The above Section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?Section 2(j) of the 1963 Act defines period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.
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STATE OF U.P. AND OTHERS Vs. KARUNAKAR KHARE AND OTHERS
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B.R. GAVAI, J. 1. Despite being served, none appears for the respondents in Civil Appeal Nos. 2824, 2829, 2830 and 2831 of 2015. 2. The only grievance that is raised in the present appeals is with regard to the date on which the benefit of G.O. dated 7 th December 1979 would be available to the respondents. 3. The issue involved before the Division Bench of the Allahabad High Court in K.K. Misra and Others v. State of U.P. and Others (Writ Petition No.6700 of 1986 dated 23rd September 1991) pertained to payment of special work allowance, special pay, fixed house rent allowance, motor subsidy and one months extra pay to the employees, who were working in the ministerial cadre of the U.P. Police Force in the Intelligence Department at par with the equivalent category of officers/officials belonging to the Executive Cadre working in the Intelligence Department. By the judgment and order dated 23rd September 1991, the writ petition was allowed by the Division Bench and the allowances were made applicable from the date of the said order. The view taken in the case of K.K. Misra (supra) has been affirmed by this Court vide its order dated 7th October 1992. 4. Lastly, this Court vide order dated 17th January 2007 passed in the case of State of U.P. and Others v. Prem Prakash Mishra and Others (Civil Appeal Nos. 1926-1928 of 2004), held that the Ministerial staff working in the police are also entitled to the same benefits that the police personnel are getting, i.e., one month extra pay in every financial year. 5. In the present case, the writ petitioners before the High Court were employees working in the Ministerial cadre in the Establishment/Department of Police, Govt. of U.P. The Single Judge of the High Court allowed the writ petition granting relief in terms of G.O. dated 7th December 1979. The State preferred special appeals before the Division Bench of the High Court, which, vide impugned order held that the employees, who have performed their duties on second Saturdays, Sundays and Gazetted holidays should also be entitled to such a benefit with effect from 7 th December 1979. 6. It is the grievance of the State that when the date from which the benefits were granted in the case of K.K. Misra (supra) had been finally approved by this Court from 23rd September 1991, the Division Bench erred in making the same benefit applicable from 7 th December 1979. 7. We find that there is merit in the contention raised on behalf of the State. 8. In view of the judgment of the High Court in K.K. Misra (supra) dated 23rd September 1991, which was approved by this Court and so also the judgment of this Court dated 17th January 2007, the benefit ought to have been given only with effect from 23rd September 1991.
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1[ds]3. The issue involved before the Division Bench of the Allahabad High Court in K.K. Misra and Others v. State of U.P. and Others (Writ Petition No.6700 of 1986 dated 23rd September 1991) pertained to payment of special work allowance, special pay, fixed house rent allowance, motor subsidy and one months extra pay to the employees, who were working in the ministerial cadre of the U.P. Police Force in the Intelligence Department at par with the equivalent category of officers/officials belonging to the Executive Cadre working in the Intelligence Department. By the judgment and order dated 23rd September 1991, the writ petition was allowed by the Division Bench and the allowances were made applicable from the date of the said order. The view taken in the case of K.K. Misra (supra) has been affirmed by this Court vide its order dated 7th October 1992.4. Lastly, this Court vide order dated 17th January 2007 passed in the case of State of U.P. and Others v. Prem Prakash Mishra and Others (Civil Appeal Nos. 1926-1928 of 2004), held that the Ministerial staff working in the police are also entitled to the same benefits that the police personnel are getting, i.e., one month extra pay in every financial year.7. We find that there is merit in the contention raised on behalf of the State.8. In view of the judgment of the High Court in K.K. Misra (supra) dated 23rd September 1991, which was approved by this Court and so also the judgment of this Court dated 17th January 2007, the benefit ought to have been given only with effect from 23rd September 1991.
| 1 | 543 | 307 |
### 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:
B.R. GAVAI, J. 1. Despite being served, none appears for the respondents in Civil Appeal Nos. 2824, 2829, 2830 and 2831 of 2015. 2. The only grievance that is raised in the present appeals is with regard to the date on which the benefit of G.O. dated 7 th December 1979 would be available to the respondents. 3. The issue involved before the Division Bench of the Allahabad High Court in K.K. Misra and Others v. State of U.P. and Others (Writ Petition No.6700 of 1986 dated 23rd September 1991) pertained to payment of special work allowance, special pay, fixed house rent allowance, motor subsidy and one months extra pay to the employees, who were working in the ministerial cadre of the U.P. Police Force in the Intelligence Department at par with the equivalent category of officers/officials belonging to the Executive Cadre working in the Intelligence Department. By the judgment and order dated 23rd September 1991, the writ petition was allowed by the Division Bench and the allowances were made applicable from the date of the said order. The view taken in the case of K.K. Misra (supra) has been affirmed by this Court vide its order dated 7th October 1992. 4. Lastly, this Court vide order dated 17th January 2007 passed in the case of State of U.P. and Others v. Prem Prakash Mishra and Others (Civil Appeal Nos. 1926-1928 of 2004), held that the Ministerial staff working in the police are also entitled to the same benefits that the police personnel are getting, i.e., one month extra pay in every financial year. 5. In the present case, the writ petitioners before the High Court were employees working in the Ministerial cadre in the Establishment/Department of Police, Govt. of U.P. The Single Judge of the High Court allowed the writ petition granting relief in terms of G.O. dated 7th December 1979. The State preferred special appeals before the Division Bench of the High Court, which, vide impugned order held that the employees, who have performed their duties on second Saturdays, Sundays and Gazetted holidays should also be entitled to such a benefit with effect from 7 th December 1979. 6. It is the grievance of the State that when the date from which the benefits were granted in the case of K.K. Misra (supra) had been finally approved by this Court from 23rd September 1991, the Division Bench erred in making the same benefit applicable from 7 th December 1979. 7. We find that there is merit in the contention raised on behalf of the State. 8. In view of the judgment of the High Court in K.K. Misra (supra) dated 23rd September 1991, which was approved by this Court and so also the judgment of this Court dated 17th January 2007, the benefit ought to have been given only with effect from 23rd September 1991.
### Response:
1
### Explanation:
3. The issue involved before the Division Bench of the Allahabad High Court in K.K. Misra and Others v. State of U.P. and Others (Writ Petition No.6700 of 1986 dated 23rd September 1991) pertained to payment of special work allowance, special pay, fixed house rent allowance, motor subsidy and one months extra pay to the employees, who were working in the ministerial cadre of the U.P. Police Force in the Intelligence Department at par with the equivalent category of officers/officials belonging to the Executive Cadre working in the Intelligence Department. By the judgment and order dated 23rd September 1991, the writ petition was allowed by the Division Bench and the allowances were made applicable from the date of the said order. The view taken in the case of K.K. Misra (supra) has been affirmed by this Court vide its order dated 7th October 1992.4. Lastly, this Court vide order dated 17th January 2007 passed in the case of State of U.P. and Others v. Prem Prakash Mishra and Others (Civil Appeal Nos. 1926-1928 of 2004), held that the Ministerial staff working in the police are also entitled to the same benefits that the police personnel are getting, i.e., one month extra pay in every financial year.7. We find that there is merit in the contention raised on behalf of the State.8. In view of the judgment of the High Court in K.K. Misra (supra) dated 23rd September 1991, which was approved by this Court and so also the judgment of this Court dated 17th January 2007, the benefit ought to have been given only with effect from 23rd September 1991.
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Velvet Carpet and Co. Ltd Vs. Commissioner of Income Tax
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1. The question that needs to be decided in the present case is as to whether the Appellant/Assessee herein was entitled to weighted deduction in terms of the provision of Section 35B(1)(b)(iv) of the Income-tax Act, 1961, which was the provision in force during the relevant period, i.e., the assessment year 1983-84. In the return filed by the Assessee for that year, it had stated that a sum of Rs. 4,60,433 was paid by the Assessee to one Mr. Jack Barouk of Brussels who was appointed by the Assessee as its commercial agent in the said country for the sale of the Assessees goods. The aforesaid provision, i.e., Section 35B(1)(b)(iv), provides for weighted deduction that is in addition to the actual amount spent, one-third thereof as an additional expenditure, which provision was introduced to give the benefit to the Assessee. This provision reads as under: 35B(1)(a) : Where an Assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred, after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the Assessee) referred to in Clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year: Provided that in respect of the expenditure incurred after the 28th day of February, 1973, but before the 1st day of April, 1978, by a domestic company, being a company in which the public are substantially interested, the provisions of this clause shall have effect as if for the words one and one-third times, the words one and one-half times had been substituted. (b) The expenditure referred to in Clause (a) is that incurred wholly and exclusively on-- ... (iv) maintenance outside India of a branch, office or agency for the promotion of the sale outside India of such goods, services or facilities. As per Clause (b)(iv) the expenditure incurred shall qualify for weighted deduction in case the expenditure is incurred wholly and exclusively on maintenance outside India of a branch, office or agent for the promotion of the sale outside India of such goods, services or facilities. What is not in dispute is that the expenditure was in fact incurred. It was also incurred wholly and exclusively outside India as the payment was made to Mr. Jack Barouk a resident of Brussels. It is also not in dispute that this payment was made against some sales of carpets belonging to the Assessee, made by the said Mr. Jack Barouk. The only dispute is as to whether he could be treated as "agent" of the Assessee. The Appellant had filed appeal against the order of the Assessing Officer refusing to give benefit of the aforesaid provision, with the Commissioner of Income-tax (Appeals) ("CIT (Appeals)"), which was dismissed. However, in further appeal preferred before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. A perusal of the judgment of the Income-tax Appellate Tribunal reveals that the Income-tax Appellate Tribunal had looked into the agreement that was entered into between the Assessee and the aforesaid Mr. Jack Barouk and found that this agreement is an agency agreement. The Income-tax Appellate Tribunal also took into consideration another supporting fact that as per the legal requirement the said agreement was approved by the Reserve Bank of India and the Reserve Bank of India in its approval had treated this agreement to be an agency agreement. 2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal. 3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
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1[ds]2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
| 1 | 1,137 | 425 |
### 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 question that needs to be decided in the present case is as to whether the Appellant/Assessee herein was entitled to weighted deduction in terms of the provision of Section 35B(1)(b)(iv) of the Income-tax Act, 1961, which was the provision in force during the relevant period, i.e., the assessment year 1983-84. In the return filed by the Assessee for that year, it had stated that a sum of Rs. 4,60,433 was paid by the Assessee to one Mr. Jack Barouk of Brussels who was appointed by the Assessee as its commercial agent in the said country for the sale of the Assessees goods. The aforesaid provision, i.e., Section 35B(1)(b)(iv), provides for weighted deduction that is in addition to the actual amount spent, one-third thereof as an additional expenditure, which provision was introduced to give the benefit to the Assessee. This provision reads as under: 35B(1)(a) : Where an Assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred, after the 29th day of February, 1968, but before the 1st day of March, 1983, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the Assessee) referred to in Clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the amount of such expenditure incurred during the previous year: Provided that in respect of the expenditure incurred after the 28th day of February, 1973, but before the 1st day of April, 1978, by a domestic company, being a company in which the public are substantially interested, the provisions of this clause shall have effect as if for the words one and one-third times, the words one and one-half times had been substituted. (b) The expenditure referred to in Clause (a) is that incurred wholly and exclusively on-- ... (iv) maintenance outside India of a branch, office or agency for the promotion of the sale outside India of such goods, services or facilities. As per Clause (b)(iv) the expenditure incurred shall qualify for weighted deduction in case the expenditure is incurred wholly and exclusively on maintenance outside India of a branch, office or agent for the promotion of the sale outside India of such goods, services or facilities. What is not in dispute is that the expenditure was in fact incurred. It was also incurred wholly and exclusively outside India as the payment was made to Mr. Jack Barouk a resident of Brussels. It is also not in dispute that this payment was made against some sales of carpets belonging to the Assessee, made by the said Mr. Jack Barouk. The only dispute is as to whether he could be treated as "agent" of the Assessee. The Appellant had filed appeal against the order of the Assessing Officer refusing to give benefit of the aforesaid provision, with the Commissioner of Income-tax (Appeals) ("CIT (Appeals)"), which was dismissed. However, in further appeal preferred before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. A perusal of the judgment of the Income-tax Appellate Tribunal reveals that the Income-tax Appellate Tribunal had looked into the agreement that was entered into between the Assessee and the aforesaid Mr. Jack Barouk and found that this agreement is an agency agreement. The Income-tax Appellate Tribunal also took into consideration another supporting fact that as per the legal requirement the said agreement was approved by the Reserve Bank of India and the Reserve Bank of India in its approval had treated this agreement to be an agency agreement. 2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal. 3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
### Response:
1
### Explanation:
2. We find that the High Court while allowing the appeal of the Department and rejecting the claim of the Assessee, observed that at no stage, the Assessee had put up a case that it had maintained branch or agency outside the country. This is clearly an erroneous finding and against the record. No doubt, the Assessee was not maintaining any branch office. However, the case of the Assessee was that Mr. Jack Barouk was appointed as his agent. It was the specific case made out by the Assessee right from the stage of the assessment proceedings and was specifically argued before the Income-tax Appellate Tribunal, as mentioned above, which was accepted by the Income-tax Appellate Tribunal3. We were taken through the agreement that was entered into between the Assessee and Mr. Jack Barouk by the learned Counsel for the Appellant. It is in the form of communication dated October 24, 1977 addressed by Mr. Jack Barouk to the Assessee stating therein the terms and conditions on which two parties agreed to work together. In this communication, Mr. Jack Barouk agreed to keep the goods of the Assessee in his godown, show the said products to the visiting customers personally and secure orders from the territories mentioned therein namely, Benelux and France. This communication further states that he will be given 5 per cent, commission on all goods shipped by the Assessee to the aforesaid territories on the orders procured by the said Mr. Jack Barouk. The Assessee had accepted and agreed on the aforesaid terms contained in the said communication and there is a specific endorsement to this effect by the Assessee that the said communication, on acceptance by the Assessee, became a valid and enforceable agreement between the parties. The aforesaid terms clearly state that Mr. Jack Barouk had agreed to work as an agent of the Assessee and on the orders procured he was to get 5 per cent, commission. This aspect that the agreement was in fact an agency agreement stands conclusively established by the registration given by the Reserve Bank of India vide its letter dated October 29, 1977. Captioned communication of the Reserve Bank of India reads as "Registration of Selling Agency Arrangement". Thus, while giving its accord to the arrangement established between the parties it was termed as an agency arrangement.
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Sanjay Batham Vs. Munnalal Parihar
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of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.” 13. In the light of the above, we shall now consider whether the compensation awarded by the High Court is just and reasonable or the appellant is entitled to higher compensation. 14. It is not in dispute that at the time of accident, the appellant was earning Rs.50/- per day by doing the work as an unskilled labourer with Raj Gas Agency. It is also not in dispute that as a result of accident, the appellant suffered injuries on different parts of body including the head and after operation left portion of his body, i.e. left hand and left leg got paralyzed and as a result of that he will not be in a position to do the work which he was doing before the accident. In his deposition, Dr. N.D. Vayas, Head of Neurosurgery Department, J.A.H. Hospital, who treated the appellant before and after the operation, stated that left portion of the appellants body was paralyzed but after treatment there was slight improvement in his condition. Dr. Vayas then gave out that the appellant will require further treatment for paralysis. The learned Single Judge, who had the occasion to see the appellant in the Court, found that he was not in a position to move his left hand and left leg. He assessed the disability to be 50% and enhanced the compensation awarded by the Tribunal. However, he committed an error by applying the multiplier of 16 ignoring that at the time of accident, the appellants age was only 20 years. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , this Court has considered several issues including the application of correct multiplier and held : “We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” In view of the above noted judgment, we hold that multiplier of 18 deserves to be applied for the purpose of determining the compensation payable to the appellant in lieu of the loss of earning. Thus, under this head the appellant will be entitled to a sum of Rs.1,62,000/- .15. Although, the appellant had suffered temporary disablement, the evidence of the doctor shows that he will require treatment in future. The Tribunal and the High Court have not awarded any compensation for future treatment, which would necessarily include doctors fee, cost of medicine, transportation, diet, etc. Keeping in view the high cost of living, we feel that ends of justice will be served by awarding a lump sum amount of Rs. 2 lacs for future treatment.16. The award made by the High Court for pain, suffering and trauma and in lieu of loss of the prospects of marriage is wholly inadequate. The appellant, who suffered paralysis on left part of the body will neither be able to work as a labourer nor he will be able to lead a normal life. His marriage prospects are also bleak. A normal girl will, in all probability, not like to marry a disabled person. Therefore, it is apposite to award reasonable and just compensation to the appellant for pain, suffering and trauma caused due to the accident and loss of amenities and enjoyment of life which, in our view, should be Rs.2 lacs.17. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs. 4,20,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.
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1[ds]14. It is not in dispute that at the time of accident, the appellant was earning Rs.50/per day by doing the work as an unskilled labourer with Raj Gas Agency. It is also not in dispute that as a result of accident, the appellant suffered injuries on different parts of body including the head and after operation left portion of his body, i.e. left hand and left leg got paralyzed and as a result of that he will not be in a position to do the work which he was doing before the accident. In his deposition, Dr. N.D. Vayas, Head of Neurosurgery Department, J.A.H. Hospital, who treated the appellant before and after the operation, stated that left portion of the appellants body was paralyzed but after treatment there was slight improvement in his condition. Dr. Vayas then gave out that the appellant will require further treatment for paralysis. The learned Single Judge, who had the occasion to see the appellant in the Court, found that he was not in a position to move his left hand and left leg. He assessed the disability to be 50% and enhanced the compensation awarded by the Tribunal. However, he committed an error by applying the multiplier of 16 ignoring that at the time of accident, the appellants age was only 20 years. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , this Court has considered several issues including the application of correct multiplier and heldtherefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that isfor 26 to 30 years,for 31 to 35 years,for 36 to 40 years,for 41 to 45 years, andfor 46 to 50 years, then reduced by two units for every five years, that is,for 51 to 55 years,for 56 to 60 years,for 61 to 65 years andfor 66 to 70.15. Although, the appellant had suffered temporary disablement, the evidence of the doctor shows that he will require treatment in future. The Tribunal and the High Court have not awarded any compensation for future treatment, which would necessarily include doctors fee, cost of medicine, transportation, diet, etc. Keeping in view the high cost of living, we feel that ends of justice will be served by awarding a lump sum amount of Rs. 2 lacs for future treatment.16. The award made by the High Court for pain, suffering and trauma and in lieu of loss of the prospects of marriage is wholly inadequate. The appellant, who suffered paralysis on left part of the body will neither be able to work as a labourer nor he will be able to lead a normal life. His marriage prospects are also bleak. A normal girl will, in all probability, not like to marry a disabled person. Therefore, it is apposite to award reasonable and just compensation to the appellant for pain, suffering and trauma caused due to the accident and loss of amenities and enjoyment of life which, in our view, should be Rs.2 lacs.17. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs. 4,20,000/only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of anthe Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
| 1 | 4,363 | 818 |
### 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:
of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.” 13. In the light of the above, we shall now consider whether the compensation awarded by the High Court is just and reasonable or the appellant is entitled to higher compensation. 14. It is not in dispute that at the time of accident, the appellant was earning Rs.50/- per day by doing the work as an unskilled labourer with Raj Gas Agency. It is also not in dispute that as a result of accident, the appellant suffered injuries on different parts of body including the head and after operation left portion of his body, i.e. left hand and left leg got paralyzed and as a result of that he will not be in a position to do the work which he was doing before the accident. In his deposition, Dr. N.D. Vayas, Head of Neurosurgery Department, J.A.H. Hospital, who treated the appellant before and after the operation, stated that left portion of the appellants body was paralyzed but after treatment there was slight improvement in his condition. Dr. Vayas then gave out that the appellant will require further treatment for paralysis. The learned Single Judge, who had the occasion to see the appellant in the Court, found that he was not in a position to move his left hand and left leg. He assessed the disability to be 50% and enhanced the compensation awarded by the Tribunal. However, he committed an error by applying the multiplier of 16 ignoring that at the time of accident, the appellants age was only 20 years. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , this Court has considered several issues including the application of correct multiplier and held : “We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” In view of the above noted judgment, we hold that multiplier of 18 deserves to be applied for the purpose of determining the compensation payable to the appellant in lieu of the loss of earning. Thus, under this head the appellant will be entitled to a sum of Rs.1,62,000/- .15. Although, the appellant had suffered temporary disablement, the evidence of the doctor shows that he will require treatment in future. The Tribunal and the High Court have not awarded any compensation for future treatment, which would necessarily include doctors fee, cost of medicine, transportation, diet, etc. Keeping in view the high cost of living, we feel that ends of justice will be served by awarding a lump sum amount of Rs. 2 lacs for future treatment.16. The award made by the High Court for pain, suffering and trauma and in lieu of loss of the prospects of marriage is wholly inadequate. The appellant, who suffered paralysis on left part of the body will neither be able to work as a labourer nor he will be able to lead a normal life. His marriage prospects are also bleak. A normal girl will, in all probability, not like to marry a disabled person. Therefore, it is apposite to award reasonable and just compensation to the appellant for pain, suffering and trauma caused due to the accident and loss of amenities and enjoyment of life which, in our view, should be Rs.2 lacs.17. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs. 4,20,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.
### Response:
1
### Explanation:
14. It is not in dispute that at the time of accident, the appellant was earning Rs.50/per day by doing the work as an unskilled labourer with Raj Gas Agency. It is also not in dispute that as a result of accident, the appellant suffered injuries on different parts of body including the head and after operation left portion of his body, i.e. left hand and left leg got paralyzed and as a result of that he will not be in a position to do the work which he was doing before the accident. In his deposition, Dr. N.D. Vayas, Head of Neurosurgery Department, J.A.H. Hospital, who treated the appellant before and after the operation, stated that left portion of the appellants body was paralyzed but after treatment there was slight improvement in his condition. Dr. Vayas then gave out that the appellant will require further treatment for paralysis. The learned Single Judge, who had the occasion to see the appellant in the Court, found that he was not in a position to move his left hand and left leg. He assessed the disability to be 50% and enhanced the compensation awarded by the Tribunal. However, he committed an error by applying the multiplier of 16 ignoring that at the time of accident, the appellants age was only 20 years. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , this Court has considered several issues including the application of correct multiplier and heldtherefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that isfor 26 to 30 years,for 31 to 35 years,for 36 to 40 years,for 41 to 45 years, andfor 46 to 50 years, then reduced by two units for every five years, that is,for 51 to 55 years,for 56 to 60 years,for 61 to 65 years andfor 66 to 70.15. Although, the appellant had suffered temporary disablement, the evidence of the doctor shows that he will require treatment in future. The Tribunal and the High Court have not awarded any compensation for future treatment, which would necessarily include doctors fee, cost of medicine, transportation, diet, etc. Keeping in view the high cost of living, we feel that ends of justice will be served by awarding a lump sum amount of Rs. 2 lacs for future treatment.16. The award made by the High Court for pain, suffering and trauma and in lieu of loss of the prospects of marriage is wholly inadequate. The appellant, who suffered paralysis on left part of the body will neither be able to work as a labourer nor he will be able to lead a normal life. His marriage prospects are also bleak. A normal girl will, in all probability, not like to marry a disabled person. Therefore, it is apposite to award reasonable and just compensation to the appellant for pain, suffering and trauma caused due to the accident and loss of amenities and enjoyment of life which, in our view, should be Rs.2 lacs.17. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs. 4,20,000/only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of anthe Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
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ASGAR Vs. MOHAN VARMA
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proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves. 36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v Rajesh, Justice A P Misra, speaking for a two judge Bench of this Court, while interpreting the expression any person in Rule 97, held thus : 10…We find the expression any person under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words any person it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. 37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession. 38. In a succinct elucidation of the law in Nusserwanji E Poonegar v Mrs Shirinbai F Bbesania , Justice R A Jahagirdar as a Single Judge of the Bombay High Court interpreted Rule 101 of Order XXI: 10. From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing Court under the said rule are plenary. The powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule. 39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103. 40. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder. 41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.
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0[ds]22. The above observations of the High Court indicate that the reason why it did not go into the question was because it did not arise from the order on the claim petitions. In fact, the High Court also observed that it would not pronounce judgment on whether the appellants were entitled to raise the issue. While dismissing the Special Leave Petition against the judgment of the High Court, this Court in its order dated 25 July 2014 observed that insofar as the question of compensation for improvements made by the appellants is concerned, the appellants were free to pursue an appropriate remedy for the redressal of their grievances in accordance with law. These observations as contained in the order of this Court cannot be construed to mean that the respondents would be deprived of their right to set up a plea of constructive res judicata if the appellants were to raise such a claim. The appellants were, as this Court observed, free to pursue the appropriate remedy for redressal of their grievances in accordance with law. This must necessarily be construed to mean that all defences of the respondents upon the invocation of a remedy by the appellants were kept open for decision. The liberty granted by this Court was not one-sided. It encompasses both the ability of the appellants to take recourse and of the respondents to raise necessary defences to the invocation of the remedy. Therefore, we do not find any merit in the submission urged on behalf of the appellants that the earlier judgment of the Kerala High Court and the order of this Court preclude the respondents from raising the bar of constructive res judicata28. In the present case, what the appellants now seek to assert is that in pursuance of the provisions of Section 4(1), they are entitled to remain in possession until their claim for compensation for the improvements made on the land is adjudicated upon. As we have found earlier, the claim which the appellants asserted in Execution Application 38 of 2009 was specifically for declaring that they were entitled to remain in possession as lessees and that the respondents were not entitled to dispossess them from the property in their possession. Though they sought to assert that claim in their character as lessees, the issue which requires consideration is whether the claim to compensation under Section 4(1) of the Act of 1958 could have been asserted in the earlier proceedings and should have been asserted then32. We are not inclined to decide this question on a priori consideration, for the simple reason that under the CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future34. In determining as to whether the bar of constructive res judicata stands attracted, it is necessary to advert to the earlier application which was filed by the appellants in the execution proceedings. The appellants styled the application as one under Order XXI Rule 99 of the CPC but that, in our view, is not determinative of the true nature of the application.36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 10340. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.
| 0 | 10,000 | 1,535 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves. 36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v Rajesh, Justice A P Misra, speaking for a two judge Bench of this Court, while interpreting the expression any person in Rule 97, held thus : 10…We find the expression any person under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words any person it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. 37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession. 38. In a succinct elucidation of the law in Nusserwanji E Poonegar v Mrs Shirinbai F Bbesania , Justice R A Jahagirdar as a Single Judge of the Bombay High Court interpreted Rule 101 of Order XXI: 10. From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing Court under the said rule are plenary. The powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule. 39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103. 40. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder. 41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.
### Response:
0
### Explanation:
for the simple reason that under the CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future34. In determining as to whether the bar of constructive res judicata stands attracted, it is necessary to advert to the earlier application which was filed by the appellants in the execution proceedings. The appellants styled the application as one under Order XXI Rule 99 of the CPC but that, in our view, is not determinative of the true nature of the application.36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 10340. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.
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Auchtel Products Limited Vs. Regional Provident Fund Commissioner
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ORAL JUDGMENTBy this petition, the petitioner challenges the order dated 18th December 1995 passed by the Regional Provident Fund Commissioner. A show cause notice dated 23rd August 1995 was issued to the petitioner asking them as to show cause why amount of Provident Fun, Family Pension Fund, Deposit Linked Insurance Fund and Administrative Charges should not be recovered as an arrears of land revenue under section 8 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is not disputed before me that this show cause notice related to the employees who were engaged by the Transport Contractors engaged by the petitioner. Pursuant to the show cause notice, the petitioner submitted a detailed explanation before the Regional Provident Fund Commissioner pointing out therein employees engaged by the Transport Contractors engaged by the petitioner, cannot be termed as an employees of the petitioner-company. It was also pointed out that apart from doing the work of petitioner-company the Transport Contractors engaged by the petitioner, do other work and therefore, the work of petitioner-company is only a part of the work or business carried on by the Transport Contractors and their employees. It was also pointed out that the same issue as to whether the employees engaged by the Transport Contractors of the petitioner, can be termed as employees of the Petitioner-company, is pending consideration before the Industrial Court, Thane in Complaint ULP No.267 of 1987, therefore, the present proceedings should be stayed till that case is decided by the Industrial court. A Provident Fund Commissioner passed order on 18th October 1995 holding that the employees engaged by the Transport Contractors of the petitioner-company are the employees of the petitioner Company for the purpose of Provident Fund Act. It is this order, which is challenged in the present petition.2.The learned Counsel for the petitioner submitted before me that the petitioner had given elaborate explanation in their reply to the show cause notice as to why the employees engaged by the Transport Contractors cannot be treated as employees of the petitioner-company. However, in the submission of the learned counsel, neither that explanation has been considered by the Provident Fund Commissioner and though that explanation has been rejected by the Provident Fund Commissioner, no reasons have been disclosed for doing so. Bare perusal of the order shows that the submission made by the learned counsel for the petitioner is well founded. Though elaborate explanation is given in the show cause notice, the Provident Fund Commissioner has nowhere considered that explanation and he has given no reasons in rejecting that explanation. In my opinion, very purpose behind giving show cause notice is to afford an opportunity to the persons concerned to submit his explanation and the moment such an explanation is submitted, the authority issuing show cause notice, is duty bound to consider the explanation submitted, and to give reasons for rejecting that explanation. As no such thing is done by the Provident Fund Commissioner in the present case, in my opinion, the order suffers from total non application of mind and therefore, it is liable to be quashed and set aside and the matter is to be remitted back to the Provident Fund Commissioner for consideration and decision in accordance with law. While proceeding further, the Provident Fund Commissioner may also consider whether it would be better to wait for the decision of the Industrial Court which is considering the identical issue according to the submission made by the learned counsel for the petitioner. The Provident Fund Commissioner shall pass a final order in accordance with law after granting the petitioner adequate opportunity of being heard.
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1[ds]However, in the submission of the learned counsel, neither that explanation has been considered by the Provident Fund Commissioner and though that explanation has been rejected by the Provident Fund Commissioner, no reasons have been disclosed for doing so. Bare perusal of the order shows that the submission made by the learned counsel for the petitioner is well founded. Though elaborate explanation is given in the show cause notice, the Provident Fund Commissioner has nowhere considered that explanation and he has given no reasons in rejecting that explanation. In my opinion, very purpose behind giving show cause notice is to afford an opportunity to the persons concerned to submit his explanation and the moment such an explanation is submitted, the authority issuing show cause notice, is duty bound to consider the explanation submitted, and to give reasons for rejecting that explanation. As no such thing is done by the Provident Fund Commissioner in the present case, in my opinion, the order suffers from total non application of mind and therefore, it is liable to be quashed and set aside and the matter is to be remitted back to the Provident Fund Commissioner for consideration and decision in accordance with law. While proceeding further, the Provident Fund Commissioner may also consider whether it would be better to wait for the decision of the Industrial Court which is considering the identical issue according to the submission made by the learned counsel for the petitioner. The Provident Fund Commissioner shall pass a final order in accordance with law after granting the petitioner adequate opportunity of being heard.
| 1 | 645 | 287 |
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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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ORAL JUDGMENTBy this petition, the petitioner challenges the order dated 18th December 1995 passed by the Regional Provident Fund Commissioner. A show cause notice dated 23rd August 1995 was issued to the petitioner asking them as to show cause why amount of Provident Fun, Family Pension Fund, Deposit Linked Insurance Fund and Administrative Charges should not be recovered as an arrears of land revenue under section 8 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is not disputed before me that this show cause notice related to the employees who were engaged by the Transport Contractors engaged by the petitioner. Pursuant to the show cause notice, the petitioner submitted a detailed explanation before the Regional Provident Fund Commissioner pointing out therein employees engaged by the Transport Contractors engaged by the petitioner, cannot be termed as an employees of the petitioner-company. It was also pointed out that apart from doing the work of petitioner-company the Transport Contractors engaged by the petitioner, do other work and therefore, the work of petitioner-company is only a part of the work or business carried on by the Transport Contractors and their employees. It was also pointed out that the same issue as to whether the employees engaged by the Transport Contractors of the petitioner, can be termed as employees of the Petitioner-company, is pending consideration before the Industrial Court, Thane in Complaint ULP No.267 of 1987, therefore, the present proceedings should be stayed till that case is decided by the Industrial court. A Provident Fund Commissioner passed order on 18th October 1995 holding that the employees engaged by the Transport Contractors of the petitioner-company are the employees of the petitioner Company for the purpose of Provident Fund Act. It is this order, which is challenged in the present petition.2.The learned Counsel for the petitioner submitted before me that the petitioner had given elaborate explanation in their reply to the show cause notice as to why the employees engaged by the Transport Contractors cannot be treated as employees of the petitioner-company. However, in the submission of the learned counsel, neither that explanation has been considered by the Provident Fund Commissioner and though that explanation has been rejected by the Provident Fund Commissioner, no reasons have been disclosed for doing so. Bare perusal of the order shows that the submission made by the learned counsel for the petitioner is well founded. Though elaborate explanation is given in the show cause notice, the Provident Fund Commissioner has nowhere considered that explanation and he has given no reasons in rejecting that explanation. In my opinion, very purpose behind giving show cause notice is to afford an opportunity to the persons concerned to submit his explanation and the moment such an explanation is submitted, the authority issuing show cause notice, is duty bound to consider the explanation submitted, and to give reasons for rejecting that explanation. As no such thing is done by the Provident Fund Commissioner in the present case, in my opinion, the order suffers from total non application of mind and therefore, it is liable to be quashed and set aside and the matter is to be remitted back to the Provident Fund Commissioner for consideration and decision in accordance with law. While proceeding further, the Provident Fund Commissioner may also consider whether it would be better to wait for the decision of the Industrial Court which is considering the identical issue according to the submission made by the learned counsel for the petitioner. The Provident Fund Commissioner shall pass a final order in accordance with law after granting the petitioner adequate opportunity of being heard.
### Response:
1
### Explanation:
However, in the submission of the learned counsel, neither that explanation has been considered by the Provident Fund Commissioner and though that explanation has been rejected by the Provident Fund Commissioner, no reasons have been disclosed for doing so. Bare perusal of the order shows that the submission made by the learned counsel for the petitioner is well founded. Though elaborate explanation is given in the show cause notice, the Provident Fund Commissioner has nowhere considered that explanation and he has given no reasons in rejecting that explanation. In my opinion, very purpose behind giving show cause notice is to afford an opportunity to the persons concerned to submit his explanation and the moment such an explanation is submitted, the authority issuing show cause notice, is duty bound to consider the explanation submitted, and to give reasons for rejecting that explanation. As no such thing is done by the Provident Fund Commissioner in the present case, in my opinion, the order suffers from total non application of mind and therefore, it is liable to be quashed and set aside and the matter is to be remitted back to the Provident Fund Commissioner for consideration and decision in accordance with law. While proceeding further, the Provident Fund Commissioner may also consider whether it would be better to wait for the decision of the Industrial Court which is considering the identical issue according to the submission made by the learned counsel for the petitioner. The Provident Fund Commissioner shall pass a final order in accordance with law after granting the petitioner adequate opportunity of being heard.
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State of Orissa Etc Vs. Arun Kumar Patnaik and Another Etc
|
an appointment. The terms of the initial appointment are relevant in this behalf because though the appointment was on a contract basis, it was also expressly described as temporary. In common parlance it may be incongruous to describe a contractual appointment as temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulations have their own semantics and not unoften, not only are service rules technical but they have their own technical vocabulary. Krishna Moorthys initial appointment must be construed on its own terms and therefore the adjective temporary cannot be dismissed as a mere adjunct. He was unquestionably and in terms appointed as an Assistant Engineer on a "temporary" basis and the fact that he held his post on a contract did not make his tenure other than temporary. The subsequent course of his career, within the contractual period itself, show s that he was granted all the facilities and privileges which are available to employees in the regular cadre, temporary or permanent, and which are generally not available to contractual employees. He drew the same pay as any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He drew no special benefits by reason of being on a contractual basis. And when during the currency of the contract he wanted to apply for a post under the Union of India, his application was not forwarded by the State Government for the reason that there was a "shortage of technical personnel in the State". His appointment was thus made truly on a temporary basis and the question for consideration resolves itself into this: Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively ?If Krishna Moorthy had not been recommended by the Public Service Commission, different considerations might have arisen. But he was recommended by the Commission, the recommendation was accepted by the Governor and the State Government appointed him as an Assistant Engineer on a temporary basis in pursuance of the Commissions recommendation and the Governors selection. This is where Rule 19 plays an important part. Under clause (a) of that rule, persons appointed by direct recruitment are required to be on probation for 2 years. Under clause (b) of Rule 19, not withstanding anything in clause (a), "when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole of the period of his temporary service or a portion thereof, as the case may be shall if approved by the Government for this purpose, count towards the prescribed period of probation". Krishna Moorthy was selected by the State Government for a permanent appointment as an Assistant Engineer and before implementing that decision, the State Government had obtained the concurrence of the Public Service Commission. On such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further orders, with effect from January 19, 1959. The Government had the power under rule 19(b) to count any part of Krishna Moorthys temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959 till March 14, 1962 towards the probationary period. He had by then put in more than three years service whereas rule 19 stipulates a normal probationary period of 2 years only.6. In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.7.
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1[ds]In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.
| 1 | 3,536 | 462 |
### 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:
an appointment. The terms of the initial appointment are relevant in this behalf because though the appointment was on a contract basis, it was also expressly described as temporary. In common parlance it may be incongruous to describe a contractual appointment as temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulations have their own semantics and not unoften, not only are service rules technical but they have their own technical vocabulary. Krishna Moorthys initial appointment must be construed on its own terms and therefore the adjective temporary cannot be dismissed as a mere adjunct. He was unquestionably and in terms appointed as an Assistant Engineer on a "temporary" basis and the fact that he held his post on a contract did not make his tenure other than temporary. The subsequent course of his career, within the contractual period itself, show s that he was granted all the facilities and privileges which are available to employees in the regular cadre, temporary or permanent, and which are generally not available to contractual employees. He drew the same pay as any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He drew no special benefits by reason of being on a contractual basis. And when during the currency of the contract he wanted to apply for a post under the Union of India, his application was not forwarded by the State Government for the reason that there was a "shortage of technical personnel in the State". His appointment was thus made truly on a temporary basis and the question for consideration resolves itself into this: Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively ?If Krishna Moorthy had not been recommended by the Public Service Commission, different considerations might have arisen. But he was recommended by the Commission, the recommendation was accepted by the Governor and the State Government appointed him as an Assistant Engineer on a temporary basis in pursuance of the Commissions recommendation and the Governors selection. This is where Rule 19 plays an important part. Under clause (a) of that rule, persons appointed by direct recruitment are required to be on probation for 2 years. Under clause (b) of Rule 19, not withstanding anything in clause (a), "when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole of the period of his temporary service or a portion thereof, as the case may be shall if approved by the Government for this purpose, count towards the prescribed period of probation". Krishna Moorthy was selected by the State Government for a permanent appointment as an Assistant Engineer and before implementing that decision, the State Government had obtained the concurrence of the Public Service Commission. On such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further orders, with effect from January 19, 1959. The Government had the power under rule 19(b) to count any part of Krishna Moorthys temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959 till March 14, 1962 towards the probationary period. He had by then put in more than three years service whereas rule 19 stipulates a normal probationary period of 2 years only.6. In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.7.
### Response:
1
### Explanation:
In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthys appointment under the notification of March 14, 1962 is in any sense invalid. Consequently, his subsequent promotions and the seniority accorded to him must also be upheld. The decision in Narayan Chandra Parida v. State of Orissa and Ors., (1) on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two. It is unnecessary to deal at length with the States contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress. Krishna Moorthys appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthys confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without an y force". It overlooked that in June, 1974 it was setting aside an appointment dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.
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Rawalmal Naraindas & Sons Vs. B. Amarnath
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building, a unit with separate door number on the ground floor which was leased out to the appellant-tenant was admittedly a non-residential `building, which attracted the applicability of the provisions of Section 10(3)(a)(iii) of the Act. Section 10(3)(c) would apply in a case where out of the leased premises, a part thereof is in occupation of the landlord who in that event can apply to the Rent Controller for an order directing the tenant to put him in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he was carrying on, as the case may be. Part of the building referred to in clause (c) of the sub-section 3 of Section 10 of the Act has to be understood in the context of the definition of the word `building under Section 2(iii) of the Act. If the building within the meaning of Section 2(iii) is indivisible, the same has to be taken as an entity for the purpose of deciding the issue regarding eviction and cannot be further split or its scope widened by having regard to the loose general meaning of the word `building. We are of the opinion that the appellant is not justified in contending that the entire building was a single unit though having different door numbers for different portions of the building and that all the courts below have rightly overruled such a contention. 5. Shri Mishra has also tried to persuade us to hold that the conversion of the building being contrary to Section 18 of the Act, disentitled the landlord to seek eviction. Such a plea is more hypothetical than real. The decisions relied upon have no reliance in the instant case particularly when no such plea was raised before the courts below. The reliance of the appellant on the judgment of this Court in Vinod Kumar Arora v. Surjit Kaur, 1987(3) SCC 711 is of no help to him. In that case, this Court while dealing with East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982 found that the Amending Act therein had enlarged the definition of `non residential building in the parent Act by making `a building let out under a single tenancy for use for the purpose of business or trade and also for the purpose of residence to be also a non-residential building. Such is not the position under the Act. Even in that case the Court had observed, "having taken up such a stand the appellant cannot reprobate and contend that the lease of the hall was of a composite nature and as such the benefit of the enlarged definition of a `non-residential building given in the Amendment Act would enure to his aid in the case." Similarly, the reliance of the learned counsel for the appellant on the judgment of this Court in Shri Balaganesan Metals v. Shri M.N. Shammugham Chetty and others, 1987(2) SCR 1173 is of no help to him. In that case admittedly, the landlords had filed a petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) ACt, 1960 praying for eviction of the tenant on the ground of bona fide requirement for the purpose of additional accommodation for their residential needs. Section 10(3)(c) of Tamil Nadu Act is in pari materia with Section 10(3)(c) of the Act. In that case, there was no dispute regarding the applicability of Section 10(3)(a)(i) and (iii) as admittedly the landlords had sought eviction under Section 10(3)(c). In that context it was observed :- "Yet another noteworthy feature to be borne in mind is that Section 10(3)(c) is governed by two provisos which is not the case when eviction orders are made under any of the sub-clauses of Section 10(30(a). The first proviso enjoins the Controller to reject the application of landlord under Section 10(3)9c) for additional accommodation, even where the need of the landlord is found to be genine, if the hardship caused to the tenant by an order of eviction will outweigh the advantage to the landlord by the said order. The second proviso empowers the controller to give the tenant a reasonable time not exceeding three months in the aggregate to vacate the portion in his occupation and put the landlord in possession thereof. Obviously the second proviso has been made to facilitate the tenant to find alternate residential or non-residential accommodation elsewhere, since the landlord who is already in possession of a portion of the building can put up with the hardship of inadequate accommodation for a period of three months at the most.The above analytical consideration of the relevant provisions bring out clearly the fallacy contained in and the untenability of the contention that the ground floor occupied by the appellant is a distinct and separate unit and as such the respondents cannot seek his eviction under Section 10(3)(c) of the Act." This court also referred to the judgment of the Andhra Pradesh High Court in K. Parasuramaih v. Lakshmamma, AIR 1965 A.P. 220 wherein it was held that if a landlord satisfies the Controller that he wanted additional accommodation in the same building for his residential or non-residential requirements, then notwithstanding the user to which the tenant was putting in the leased portion, the landlord was entitled to an order of eviction so that he could re-adjust additional accommodation in the manner convenient to him and it was not necessary that the additional accommodation sought for should be used by the landlord for the same purpose for which the tenant sought to be evicted was using it. 6. We are satisfied that the judgment impugned is based upon concurrent findings of fact of the Rent Controller and of the Chief Judge, City Small Causes Court, which have been appropriately appreciated by the High Court, in the light of the provisions of the Act requiring no interference. The pleas raised before us are not tenable being bereft of sound legal foundations. The appeal which has no merit is liable to he dismissed.
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0[ds]Accepting such a plea at this stage would render the provisions of the Act ineffective inasmuch as the definition of the word `building incorporated in Section 2(iii) of the Act would be rendered futile. The building or part of the building as leased out has to be deemed to be a `building for the purposes of eviction proceedings and a part of the building cannot be permitted to be a part thereof the whole building. The building, a unit with separate door number on the ground floor which was leased out to thewas admittedly a`building, which attracted the applicability of the provisions of Section 10(3)(a)(iii) of the Act. Section 10(3)(c) would apply in a case where out of the leased premises, a part thereof is in occupation of the landlord who in that event can apply to the Rent Controller for an order directing the tenant to put him in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he was carrying on, as the case may be. Part of the building referred to in clause (c) of the3 of Section 10 of the Act has to be understood in the context of the definition of the word `building under Section 2(iii) of the Act. If the building within the meaning of Section 2(iii) is indivisible, the same has to be taken as an entity for the purpose of deciding the issue regarding eviction and cannot be further split or its scope widened by having regard to the loose general meaning of the word `building. We are of the opinion that the appellant is not justified in contending that the entire building was a single unit though having different door numbers for different portions of the building and that all the courts below have rightly overruled such adecisions relied upon have no reliance in the instant case particularly when no such plea was raised before the courts below. The reliance of the appellant on the judgment of this Court in Vinod Kumar Arora v. Surjit Kaur, 1987(3) SCC 711 is of no help to him. In that case, this Court while dealing with East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982 found that the Amending Act therein had enlarged the definition of `non residential building in the parent Act by making `a building let out under a single tenancy for use for the purpose of business or trade and also for the purpose of residence to be also abuilding. Such is not the position under the Act. Even in that case the Court had observed, "having taken up such a stand the appellant cannot reprobate and contend that the lease of the hall was of a composite nature and as such the benefit of the enlarged definition of abuilding given in the Amendment Act would enure to his aid in the case." Similarly, the reliance of the learned counsel for the appellant on the judgment of this Court in Shri Balaganesan Metals v. Shri M.N. Shammugham Chetty and others, 1987(2) SCR 1173 is of no help to him. In that case admittedly, the landlords had filed a petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) ACt, 1960 praying for eviction of the tenant on the ground of bona fide requirement for the purpose of additional accommodation for their residential needs. Section 10(3)(c) of Tamil Nadu Act is in pari materia with Section 10(3)(c) of the Act. In that case, there was no dispute regarding the applicability of Section 10(3)(a)(i) and (iii) as admittedly the landlords had sought eviction under Section 10(3)(c). In that context it was observedanother noteworthy feature to be borne in mind is that Section 10(3)(c) is governed by two provisos which is not the case when eviction orders are made under any of theof Section 10(30(a). The first proviso enjoins the Controller to reject the application of landlord under Section 10(3)9c) for additional accommodation, even where the need of the landlord is found to be genine, if the hardship caused to the tenant by an order of eviction will outweigh the advantage to the landlord by the said order. The second proviso empowers the controller to give the tenant a reasonable time not exceeding three months in the aggregate to vacate the portion in his occupation and put the landlord in possession thereof. Obviously the second proviso has been made to facilitate the tenant to find alternate residential oraccommodation elsewhere, since the landlord who is already in possession of a portion of the building can put up with the hardship of inadequate accommodation for a period of three months at the most.The above analytical consideration of the relevant provisions bring out clearly the fallacy contained in and the untenability of the contention that the ground floor occupied by the appellant is a distinct and separate unit and as such the respondents cannot seek his eviction under Section 10(3)(c) of the Act."
| 0 | 2,306 | 977 |
### 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:
building, a unit with separate door number on the ground floor which was leased out to the appellant-tenant was admittedly a non-residential `building, which attracted the applicability of the provisions of Section 10(3)(a)(iii) of the Act. Section 10(3)(c) would apply in a case where out of the leased premises, a part thereof is in occupation of the landlord who in that event can apply to the Rent Controller for an order directing the tenant to put him in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he was carrying on, as the case may be. Part of the building referred to in clause (c) of the sub-section 3 of Section 10 of the Act has to be understood in the context of the definition of the word `building under Section 2(iii) of the Act. If the building within the meaning of Section 2(iii) is indivisible, the same has to be taken as an entity for the purpose of deciding the issue regarding eviction and cannot be further split or its scope widened by having regard to the loose general meaning of the word `building. We are of the opinion that the appellant is not justified in contending that the entire building was a single unit though having different door numbers for different portions of the building and that all the courts below have rightly overruled such a contention. 5. Shri Mishra has also tried to persuade us to hold that the conversion of the building being contrary to Section 18 of the Act, disentitled the landlord to seek eviction. Such a plea is more hypothetical than real. The decisions relied upon have no reliance in the instant case particularly when no such plea was raised before the courts below. The reliance of the appellant on the judgment of this Court in Vinod Kumar Arora v. Surjit Kaur, 1987(3) SCC 711 is of no help to him. In that case, this Court while dealing with East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982 found that the Amending Act therein had enlarged the definition of `non residential building in the parent Act by making `a building let out under a single tenancy for use for the purpose of business or trade and also for the purpose of residence to be also a non-residential building. Such is not the position under the Act. Even in that case the Court had observed, "having taken up such a stand the appellant cannot reprobate and contend that the lease of the hall was of a composite nature and as such the benefit of the enlarged definition of a `non-residential building given in the Amendment Act would enure to his aid in the case." Similarly, the reliance of the learned counsel for the appellant on the judgment of this Court in Shri Balaganesan Metals v. Shri M.N. Shammugham Chetty and others, 1987(2) SCR 1173 is of no help to him. In that case admittedly, the landlords had filed a petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) ACt, 1960 praying for eviction of the tenant on the ground of bona fide requirement for the purpose of additional accommodation for their residential needs. Section 10(3)(c) of Tamil Nadu Act is in pari materia with Section 10(3)(c) of the Act. In that case, there was no dispute regarding the applicability of Section 10(3)(a)(i) and (iii) as admittedly the landlords had sought eviction under Section 10(3)(c). In that context it was observed :- "Yet another noteworthy feature to be borne in mind is that Section 10(3)(c) is governed by two provisos which is not the case when eviction orders are made under any of the sub-clauses of Section 10(30(a). The first proviso enjoins the Controller to reject the application of landlord under Section 10(3)9c) for additional accommodation, even where the need of the landlord is found to be genine, if the hardship caused to the tenant by an order of eviction will outweigh the advantage to the landlord by the said order. The second proviso empowers the controller to give the tenant a reasonable time not exceeding three months in the aggregate to vacate the portion in his occupation and put the landlord in possession thereof. Obviously the second proviso has been made to facilitate the tenant to find alternate residential or non-residential accommodation elsewhere, since the landlord who is already in possession of a portion of the building can put up with the hardship of inadequate accommodation for a period of three months at the most.The above analytical consideration of the relevant provisions bring out clearly the fallacy contained in and the untenability of the contention that the ground floor occupied by the appellant is a distinct and separate unit and as such the respondents cannot seek his eviction under Section 10(3)(c) of the Act." This court also referred to the judgment of the Andhra Pradesh High Court in K. Parasuramaih v. Lakshmamma, AIR 1965 A.P. 220 wherein it was held that if a landlord satisfies the Controller that he wanted additional accommodation in the same building for his residential or non-residential requirements, then notwithstanding the user to which the tenant was putting in the leased portion, the landlord was entitled to an order of eviction so that he could re-adjust additional accommodation in the manner convenient to him and it was not necessary that the additional accommodation sought for should be used by the landlord for the same purpose for which the tenant sought to be evicted was using it. 6. We are satisfied that the judgment impugned is based upon concurrent findings of fact of the Rent Controller and of the Chief Judge, City Small Causes Court, which have been appropriately appreciated by the High Court, in the light of the provisions of the Act requiring no interference. The pleas raised before us are not tenable being bereft of sound legal foundations. The appeal which has no merit is liable to he dismissed.
### Response:
0
### Explanation:
Accepting such a plea at this stage would render the provisions of the Act ineffective inasmuch as the definition of the word `building incorporated in Section 2(iii) of the Act would be rendered futile. The building or part of the building as leased out has to be deemed to be a `building for the purposes of eviction proceedings and a part of the building cannot be permitted to be a part thereof the whole building. The building, a unit with separate door number on the ground floor which was leased out to thewas admittedly a`building, which attracted the applicability of the provisions of Section 10(3)(a)(iii) of the Act. Section 10(3)(c) would apply in a case where out of the leased premises, a part thereof is in occupation of the landlord who in that event can apply to the Rent Controller for an order directing the tenant to put him in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he was carrying on, as the case may be. Part of the building referred to in clause (c) of the3 of Section 10 of the Act has to be understood in the context of the definition of the word `building under Section 2(iii) of the Act. If the building within the meaning of Section 2(iii) is indivisible, the same has to be taken as an entity for the purpose of deciding the issue regarding eviction and cannot be further split or its scope widened by having regard to the loose general meaning of the word `building. We are of the opinion that the appellant is not justified in contending that the entire building was a single unit though having different door numbers for different portions of the building and that all the courts below have rightly overruled such adecisions relied upon have no reliance in the instant case particularly when no such plea was raised before the courts below. The reliance of the appellant on the judgment of this Court in Vinod Kumar Arora v. Surjit Kaur, 1987(3) SCC 711 is of no help to him. In that case, this Court while dealing with East Punjab Rent Restriction (Chandigarh Amendment) Act, 1982 found that the Amending Act therein had enlarged the definition of `non residential building in the parent Act by making `a building let out under a single tenancy for use for the purpose of business or trade and also for the purpose of residence to be also abuilding. Such is not the position under the Act. Even in that case the Court had observed, "having taken up such a stand the appellant cannot reprobate and contend that the lease of the hall was of a composite nature and as such the benefit of the enlarged definition of abuilding given in the Amendment Act would enure to his aid in the case." Similarly, the reliance of the learned counsel for the appellant on the judgment of this Court in Shri Balaganesan Metals v. Shri M.N. Shammugham Chetty and others, 1987(2) SCR 1173 is of no help to him. In that case admittedly, the landlords had filed a petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) ACt, 1960 praying for eviction of the tenant on the ground of bona fide requirement for the purpose of additional accommodation for their residential needs. Section 10(3)(c) of Tamil Nadu Act is in pari materia with Section 10(3)(c) of the Act. In that case, there was no dispute regarding the applicability of Section 10(3)(a)(i) and (iii) as admittedly the landlords had sought eviction under Section 10(3)(c). In that context it was observedanother noteworthy feature to be borne in mind is that Section 10(3)(c) is governed by two provisos which is not the case when eviction orders are made under any of theof Section 10(30(a). The first proviso enjoins the Controller to reject the application of landlord under Section 10(3)9c) for additional accommodation, even where the need of the landlord is found to be genine, if the hardship caused to the tenant by an order of eviction will outweigh the advantage to the landlord by the said order. The second proviso empowers the controller to give the tenant a reasonable time not exceeding three months in the aggregate to vacate the portion in his occupation and put the landlord in possession thereof. Obviously the second proviso has been made to facilitate the tenant to find alternate residential oraccommodation elsewhere, since the landlord who is already in possession of a portion of the building can put up with the hardship of inadequate accommodation for a period of three months at the most.The above analytical consideration of the relevant provisions bring out clearly the fallacy contained in and the untenability of the contention that the ground floor occupied by the appellant is a distinct and separate unit and as such the respondents cannot seek his eviction under Section 10(3)(c) of the Act."
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R. Venkata Ramana Vs. The United India Insurance Co. Ltd
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of the accident, is suffering from 80% permanent disability. The Neurologist who had been examined by the Tribunal had stated that there was no chance of any improvement in the health of the injured. Upon perusal of the evidence, we find that Rajanala Ravi Krishna, as a result of the accident, tracheotomy and other surgeries performed on him, he has practically become bedridden, except for the fact that he can be moved in a wheel chair. He requires continuous nursing because he is unable to perform his day to day activities. In the circumstances, the learned counsel had submitted that the amount of compensation awarded by the Tribunal was just and proper. 8. On the other hand, the learned counsel appearing for the respondent – Insurance Company had submitted that the Tribunal had awarded huge amount of compensation to a person who was not having any income and was only a student, whose future was not known to any one. In the said circumstances, according to the learned counsel, the High Court had rightly considered the judgment delivered by this Court in the case of Sarla Verma v. Delhi Road Transport Corporation 2009(6) SCC 121 while awarding just amount of compensation. He had supported the judgment delivered by the High Court and had submitted that the present appeal be dismissed. 9. Upon hearing the learned counsel and looking at the impugned judgment and the order of the Tribunal as well as the evidence adduced on behalf of the claimants, we are of the view that the Tribunal was not at all lenient in the matter of awarding the compensation and the compensation awarded by the Tribunal was just and proper. 10. We have considered the facts and the injuries suffered by Rajanala Ravi Krishna, who was hardly 17 years old student at the time of the accident. We need not go into the negligence part of the driver because even in the criminal proceedings it had been held that the driver of the vehicle was guilty of rash and negligent driving. Upon perusal of the evidence, we find that the condition of Rajanala Ravi Krishna, after the accident has become very pathetic. Evidence adduced by the Neurologist and other evidence also reveal that Rajanala Ravi Krishna shall not be in a position to speak for his life and shall not be in a position to do anything except breathing for his life, unless a miracle happens. He would require care of a person every day so as to see that he is given food, bath etc. and so as to enable him even in the matter of answering natural call. It would be worth producing the reaction of the Tribunal after appreciating evidence of the doctor and the said portion of the Tribunals order has been even reproduced by the High Court in its judgment: It is not in dispute that because of this accident the injured petitioner who appears to be an active and bright student from Exs.A.481 to A.487, he lost all the function of his all four limbs on account of the severe injuries sustained by him. I have myself questioned PW.2 to find out the graveness of the injuries that are sustained by the injured third petitioner. It has been the evidence of PW.2 that there is no possibility of the injured petitioner regaining normal power of all the four limbs inspite of any amount of treatment. The patient require physio therapy throughout his life and assistance of some person for all his activities. PW.2 has also stated that it is difficult to say even by the time he was giving evidence whether the patient could regain his voice, PW.2 further stated that the patient requires regular medication of at least Rs.500/- per day for his subsistence. PW.2 also stated the patient requires some bodies assistance even for taking food and finally PW.2 stated that the patient is medically described as in a vegitiative state and patient is called as spastic quadric paresys. 11. Looking at the aforestated facts which even the High Court had noticed, we feel that the Tribunal can not be said to have awarded more amount by way of compensation. 12. From the order of the tribunal, we find that the appellants had in fact proved that they had spent Rs.3,49,128/- towards medical expenses for treating their son. They had to purchase certain instruments worth Rs.58,642/- for making life of their son comfortable and Rs.31,000/- had been spent towards nursing and Rs.1,37,000/- had to be spent for Physiotherapist. Looking at the fact that Rajanala Ravi Krishna will have to remain dependant for his whole life on someone and looking at the observations made by the Tribunal, which have been reproduced hereinabove, in our opinion, his life is very miserable and there would be substantial financial burden on the appellants for the entire life of their injured son. At times it is not possible to award compensation strictly in accordance with the law laid down as in a particular case it may not be just also. We are hesitant to say that it is a reality of life that at times life of an injured or sick person becomes more miserable for the person and for the family members than the death. Here is one such case where the appellants, even during their retired life will have to take care of their son like a child especially when they would have expected the son to take their care. 13. Though, the High Court has rightly followed the principle laid down in the case of Sarla Verma (supra), in our opinion, the amount of compensation awarded by the Tribunal is more just. The Tribunal awarded a lump sum of Rs.10 lacs and the amount of expenditure incurred by the appellants for treating their son. The total amount awarded by the Tribunal was Rs.18,75,800/- which, in our opinion, is not too much and in our opinion, the said amount should be awarded to the appellants.
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1[ds]12. From the order of the tribunal, we find that the appellants had in fact proved that they had spent Rs.3,49,128/towards medical expenses for treating their son. They had to purchase certain instruments worth Rs.58,642/for making life of their son comfortable and Rs.31,000/had been spent towards nursing and Rs.1,37,000/had to be spent for Physiotherapist. Looking at the fact that Rajanala Ravi Krishna will have to remain dependant for his whole life on someone and looking at the observations made by the Tribunal, which have been reproduced hereinabove, in our opinion, his life is very miserable and there would be substantial financial burden on the appellants for the entire life of their injured son. At times it is not possible to award compensation strictly in accordance with the law laid down as in a particular case it may not be just also. We are hesitant to say that it is a reality of life that at times life of an injured or sick person becomes more miserable for the person and for the family members than the death. Here is one such case where the appellants, even during their retired life will have to take care of their son like a child especially when they would have expected the son to take their care13. Though, the High Court has rightly followed the principle laid down in the case of Sarla Verma (supra), in our opinion, the amount of compensation awarded by the Tribunal is more just. The Tribunal awarded a lump sum of Rs.10 lacs and the amount of expenditure incurred by the appellants for treating their son. The total amount awarded by the Tribunal was Rs.18,75,800/which, in our opinion, is not too much and in our opinion, the said amount should be awarded to the appellants.
| 1 | 1,509 | 323 |
### 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:
of the accident, is suffering from 80% permanent disability. The Neurologist who had been examined by the Tribunal had stated that there was no chance of any improvement in the health of the injured. Upon perusal of the evidence, we find that Rajanala Ravi Krishna, as a result of the accident, tracheotomy and other surgeries performed on him, he has practically become bedridden, except for the fact that he can be moved in a wheel chair. He requires continuous nursing because he is unable to perform his day to day activities. In the circumstances, the learned counsel had submitted that the amount of compensation awarded by the Tribunal was just and proper. 8. On the other hand, the learned counsel appearing for the respondent – Insurance Company had submitted that the Tribunal had awarded huge amount of compensation to a person who was not having any income and was only a student, whose future was not known to any one. In the said circumstances, according to the learned counsel, the High Court had rightly considered the judgment delivered by this Court in the case of Sarla Verma v. Delhi Road Transport Corporation 2009(6) SCC 121 while awarding just amount of compensation. He had supported the judgment delivered by the High Court and had submitted that the present appeal be dismissed. 9. Upon hearing the learned counsel and looking at the impugned judgment and the order of the Tribunal as well as the evidence adduced on behalf of the claimants, we are of the view that the Tribunal was not at all lenient in the matter of awarding the compensation and the compensation awarded by the Tribunal was just and proper. 10. We have considered the facts and the injuries suffered by Rajanala Ravi Krishna, who was hardly 17 years old student at the time of the accident. We need not go into the negligence part of the driver because even in the criminal proceedings it had been held that the driver of the vehicle was guilty of rash and negligent driving. Upon perusal of the evidence, we find that the condition of Rajanala Ravi Krishna, after the accident has become very pathetic. Evidence adduced by the Neurologist and other evidence also reveal that Rajanala Ravi Krishna shall not be in a position to speak for his life and shall not be in a position to do anything except breathing for his life, unless a miracle happens. He would require care of a person every day so as to see that he is given food, bath etc. and so as to enable him even in the matter of answering natural call. It would be worth producing the reaction of the Tribunal after appreciating evidence of the doctor and the said portion of the Tribunals order has been even reproduced by the High Court in its judgment: It is not in dispute that because of this accident the injured petitioner who appears to be an active and bright student from Exs.A.481 to A.487, he lost all the function of his all four limbs on account of the severe injuries sustained by him. I have myself questioned PW.2 to find out the graveness of the injuries that are sustained by the injured third petitioner. It has been the evidence of PW.2 that there is no possibility of the injured petitioner regaining normal power of all the four limbs inspite of any amount of treatment. The patient require physio therapy throughout his life and assistance of some person for all his activities. PW.2 has also stated that it is difficult to say even by the time he was giving evidence whether the patient could regain his voice, PW.2 further stated that the patient requires regular medication of at least Rs.500/- per day for his subsistence. PW.2 also stated the patient requires some bodies assistance even for taking food and finally PW.2 stated that the patient is medically described as in a vegitiative state and patient is called as spastic quadric paresys. 11. Looking at the aforestated facts which even the High Court had noticed, we feel that the Tribunal can not be said to have awarded more amount by way of compensation. 12. From the order of the tribunal, we find that the appellants had in fact proved that they had spent Rs.3,49,128/- towards medical expenses for treating their son. They had to purchase certain instruments worth Rs.58,642/- for making life of their son comfortable and Rs.31,000/- had been spent towards nursing and Rs.1,37,000/- had to be spent for Physiotherapist. Looking at the fact that Rajanala Ravi Krishna will have to remain dependant for his whole life on someone and looking at the observations made by the Tribunal, which have been reproduced hereinabove, in our opinion, his life is very miserable and there would be substantial financial burden on the appellants for the entire life of their injured son. At times it is not possible to award compensation strictly in accordance with the law laid down as in a particular case it may not be just also. We are hesitant to say that it is a reality of life that at times life of an injured or sick person becomes more miserable for the person and for the family members than the death. Here is one such case where the appellants, even during their retired life will have to take care of their son like a child especially when they would have expected the son to take their care. 13. Though, the High Court has rightly followed the principle laid down in the case of Sarla Verma (supra), in our opinion, the amount of compensation awarded by the Tribunal is more just. The Tribunal awarded a lump sum of Rs.10 lacs and the amount of expenditure incurred by the appellants for treating their son. The total amount awarded by the Tribunal was Rs.18,75,800/- which, in our opinion, is not too much and in our opinion, the said amount should be awarded to the appellants.
### Response:
1
### Explanation:
12. From the order of the tribunal, we find that the appellants had in fact proved that they had spent Rs.3,49,128/towards medical expenses for treating their son. They had to purchase certain instruments worth Rs.58,642/for making life of their son comfortable and Rs.31,000/had been spent towards nursing and Rs.1,37,000/had to be spent for Physiotherapist. Looking at the fact that Rajanala Ravi Krishna will have to remain dependant for his whole life on someone and looking at the observations made by the Tribunal, which have been reproduced hereinabove, in our opinion, his life is very miserable and there would be substantial financial burden on the appellants for the entire life of their injured son. At times it is not possible to award compensation strictly in accordance with the law laid down as in a particular case it may not be just also. We are hesitant to say that it is a reality of life that at times life of an injured or sick person becomes more miserable for the person and for the family members than the death. Here is one such case where the appellants, even during their retired life will have to take care of their son like a child especially when they would have expected the son to take their care13. Though, the High Court has rightly followed the principle laid down in the case of Sarla Verma (supra), in our opinion, the amount of compensation awarded by the Tribunal is more just. The Tribunal awarded a lump sum of Rs.10 lacs and the amount of expenditure incurred by the appellants for treating their son. The total amount awarded by the Tribunal was Rs.18,75,800/which, in our opinion, is not too much and in our opinion, the said amount should be awarded to the appellants.
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Minerals & Metals Trading Corporation Ofindia Ltd Vs. Union Of India & Others
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without which it is not regarded as an acceptable wolfram ore or wolfram concentrate and useless to consuming industries. Basic operations bringing the material to such a standard are not a manufacturing process but from part of normal wolframite mining activities".According to a letter dated February 3, 1965 from the Director of National Metallurgical Laboratory to the Controller of Customs wolfram ore is always selectively mined in the technical terminology. The selectively mined tungsten contains about 70% WO3. Such selective mining does not constitute a manufacturing process. Unless selective mining is done the tungsten ore cannot be exported or even sold in the country of its origin. Thus the import of selectively mined tungsten ore containing 65% WO3 or more should not be regarded as the import of a product which was been manufactured overseas and has passed through the manufacturing process. The expression "selectively mined" means that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting our pieces of wolfram either by hand or by washing or magnetic separation. The appellant produced certificates from well known analytical Consulting and Technical Chemists. According to R. V. Briggs and Co. who claim to have been analysing various ores and minerals including wolframite for over sixty years the ore is always concentrated as part of the mining operations. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. The certificate from Derby and Co. London has already been referred to. Along with the appellants statement of the case an extract from the Brussels Tariff nomenclature has been attached as annexure A. In Chapter XXVI with the heading Metallic Ore etc. para 26.01 deals with Metallic Ores and concentrates....The relevant and material portions from these extracts may be reproduced :"Ores are seldom marketed before "preparation" for subsequent metallurgical operations. The most important preparatory process are those aimed at concentrating the ores.For the purposes of the present hearing, the term "concentrates" applies to ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter hamper subsequent metallurgical operations or with a view to economical transport.Process to which products, physico-chemical or chemical operations provided that they are normal to the preparation of the ores for the extraction of metal. With the exception of changes resulting from calcination, roasting or firing (with or without agglomeration), such operations must not alter the chemical composition of the basic compound which furnishes the desired metal.The physical or physico-chemical operations include crushing, grinding magnetic separation, gravimetric separation, flotation, screening, grading, agglomeration of powers (e.g., by sintering or pelleting) into grains, balls or briquettes (whether or not with the addition of small quantities of binders), drying, calcination, roasting to oxidise or magnetise the ore, etc. (but not roasting for purposes of sulphating, chloridating, etc.)The chemical processes are aimed at eliminating the unwanted matter (e.g. dissolution)."5. Among the ores specifically mentioned to which the above statement applies is Tungsten "or Wolfram". .As against this the only evidence put in by the revenue consisted of the test report of the Deputy Chief Chemist (Annexure E). After giving the necessary particulars it was stated by him that the samples were not ore as mined.We are wholly unable to comprehend how in order to fall under item 26 the ore has to be mined. There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65% WO3. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when mined contains only 5 to 2 per cent WO3 and in order to make it usable and merchantable ore with minimum 65% WO3, concentration is necessary. If items 26, of the Import Tariff is to be restricted to wolfram being material being material containing 5 to 2 per cent WO3 it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or moreWO3. On that there is a preponderating weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded either by curshing the rock and sorting out pieces of wolfram or by washing or magnetic separation and other similar and necessary process it becomes a concentrate but does not cease to be ore. Unless the ore is roasted or treated with any chemical it cannot be classed as processed.6. It is common ground that the wolfram ore which was imported by the appellants was never subjected to any process of roasting or treatment with chemicals to remove the impurities. It thus remained wolfram ore concentrate containing 65% WO3 which was of the merchantable quality and was known commercially as such and imported as ore. Apart from all this it must be remembered that in interpreting items in Taxing Statutes resort should be had not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense. There can, therefore, be no manner of doubt that the goods imported by the appellants fell within item 26 of the Import Tariff and no duty was leviable on them. The appellants were entitled to the refund of the amounts which were paid by them by way of duty.7
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1[ds]We are wholly unable to comprehend how in order to fall under item 26 the ore has to be mined. There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65% WO3. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when mined contains only 5 to 2 per cent WO3 and in order to make it usable and merchantable ore with minimum 65% WO3, concentration is necessary. If items 26, of the Import Tariff is to be restricted to wolfram being material being material containing 5 to 2 per cent WO3 it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or moreWO3. On that there is a preponderating weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded either by curshing the rock and sorting out pieces of wolfram or by washing or magnetic separation and other similar and necessary process it becomes a concentrate but does not cease to be ore. Unless the ore is roasted or treated with any chemical it cannot be classed as processed.6. It is common ground that the wolfram ore which was imported by the appellants was never subjected to any process of roasting or treatment with chemicals to remove the impurities. It thus remained wolfram ore concentrate containing 65% WO3 which was of the merchantable quality and was known commercially as such and imported as ore. Apart from all this it must be remembered that in interpreting items in Taxing Statutes resort should be had not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense. There can, therefore, be no manner of doubt that the goods imported by the appellants fell within item 26 of the Import Tariff and no duty was leviable on them. The appellants were entitled to the refund of the amounts which were paid by them by way of duty.
| 1 | 2,091 | 478 |
### 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:
without which it is not regarded as an acceptable wolfram ore or wolfram concentrate and useless to consuming industries. Basic operations bringing the material to such a standard are not a manufacturing process but from part of normal wolframite mining activities".According to a letter dated February 3, 1965 from the Director of National Metallurgical Laboratory to the Controller of Customs wolfram ore is always selectively mined in the technical terminology. The selectively mined tungsten contains about 70% WO3. Such selective mining does not constitute a manufacturing process. Unless selective mining is done the tungsten ore cannot be exported or even sold in the country of its origin. Thus the import of selectively mined tungsten ore containing 65% WO3 or more should not be regarded as the import of a product which was been manufactured overseas and has passed through the manufacturing process. The expression "selectively mined" means that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting our pieces of wolfram either by hand or by washing or magnetic separation. The appellant produced certificates from well known analytical Consulting and Technical Chemists. According to R. V. Briggs and Co. who claim to have been analysing various ores and minerals including wolframite for over sixty years the ore is always concentrated as part of the mining operations. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. The certificate from Derby and Co. London has already been referred to. Along with the appellants statement of the case an extract from the Brussels Tariff nomenclature has been attached as annexure A. In Chapter XXVI with the heading Metallic Ore etc. para 26.01 deals with Metallic Ores and concentrates....The relevant and material portions from these extracts may be reproduced :"Ores are seldom marketed before "preparation" for subsequent metallurgical operations. The most important preparatory process are those aimed at concentrating the ores.For the purposes of the present hearing, the term "concentrates" applies to ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter hamper subsequent metallurgical operations or with a view to economical transport.Process to which products, physico-chemical or chemical operations provided that they are normal to the preparation of the ores for the extraction of metal. With the exception of changes resulting from calcination, roasting or firing (with or without agglomeration), such operations must not alter the chemical composition of the basic compound which furnishes the desired metal.The physical or physico-chemical operations include crushing, grinding magnetic separation, gravimetric separation, flotation, screening, grading, agglomeration of powers (e.g., by sintering or pelleting) into grains, balls or briquettes (whether or not with the addition of small quantities of binders), drying, calcination, roasting to oxidise or magnetise the ore, etc. (but not roasting for purposes of sulphating, chloridating, etc.)The chemical processes are aimed at eliminating the unwanted matter (e.g. dissolution)."5. Among the ores specifically mentioned to which the above statement applies is Tungsten "or Wolfram". .As against this the only evidence put in by the revenue consisted of the test report of the Deputy Chief Chemist (Annexure E). After giving the necessary particulars it was stated by him that the samples were not ore as mined.We are wholly unable to comprehend how in order to fall under item 26 the ore has to be mined. There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65% WO3. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when mined contains only 5 to 2 per cent WO3 and in order to make it usable and merchantable ore with minimum 65% WO3, concentration is necessary. If items 26, of the Import Tariff is to be restricted to wolfram being material being material containing 5 to 2 per cent WO3 it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or moreWO3. On that there is a preponderating weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded either by curshing the rock and sorting out pieces of wolfram or by washing or magnetic separation and other similar and necessary process it becomes a concentrate but does not cease to be ore. Unless the ore is roasted or treated with any chemical it cannot be classed as processed.6. It is common ground that the wolfram ore which was imported by the appellants was never subjected to any process of roasting or treatment with chemicals to remove the impurities. It thus remained wolfram ore concentrate containing 65% WO3 which was of the merchantable quality and was known commercially as such and imported as ore. Apart from all this it must be remembered that in interpreting items in Taxing Statutes resort should be had not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense. There can, therefore, be no manner of doubt that the goods imported by the appellants fell within item 26 of the Import Tariff and no duty was leviable on them. The appellants were entitled to the refund of the amounts which were paid by them by way of duty.7
### Response:
1
### Explanation:
We are wholly unable to comprehend how in order to fall under item 26 the ore has to be mined. There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65% WO3. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when mined contains only 5 to 2 per cent WO3 and in order to make it usable and merchantable ore with minimum 65% WO3, concentration is necessary. If items 26, of the Import Tariff is to be restricted to wolfram being material being material containing 5 to 2 per cent WO3 it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or moreWO3. On that there is a preponderating weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded either by curshing the rock and sorting out pieces of wolfram or by washing or magnetic separation and other similar and necessary process it becomes a concentrate but does not cease to be ore. Unless the ore is roasted or treated with any chemical it cannot be classed as processed.6. It is common ground that the wolfram ore which was imported by the appellants was never subjected to any process of roasting or treatment with chemicals to remove the impurities. It thus remained wolfram ore concentrate containing 65% WO3 which was of the merchantable quality and was known commercially as such and imported as ore. Apart from all this it must be remembered that in interpreting items in Taxing Statutes resort should be had not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense. There can, therefore, be no manner of doubt that the goods imported by the appellants fell within item 26 of the Import Tariff and no duty was leviable on them. The appellants were entitled to the refund of the amounts which were paid by them by way of duty.
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BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY & ANR Vs. NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED & ORS
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view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the State. The Project Proponents would, however, rely on the exposition in paragraph 27 of the decision of this Court in Badrinath vs. Government of Tamil Nadu & Ors. (2000) 8 SCC 395 , which reads thus: - 27. This flows from the general principle applicable to consequential orders. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime – like the recommendation of the State and by the UPSC and the action taken thereon – would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order. Reliance is also placed on Section 15 of the KTCP Act, in particular, proviso thereto, which reads thus: - 15 - Permission for development of building or land.- (1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate: Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct. (2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the regulation finally approved under sub-section (3) of section 13. (3) Subject to the provisions of section 16, no compensation shall be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. (4) If any person does any work on, or makes any use of, any property in contravention of section 14 or of sub- section (1) of this section, the Planning Authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to such Authority under this Act from the person in default or from the owner of the land. Explanation. -The power to grant necessary permission under this section for a change of user of land shall include the power to grant permission for the retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an outline development plan under sub-section (1) of section 10 or for the continuance of any use of land instituted before the said date. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (1) or sub-section (4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed. (7) The prescribed authority may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such orders as it deems fit, as far as may be, within four months from the date of receipt of the appeal. (emphasis supplied) We are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.2012. 66. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.
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1[ds]36. Considering the rival submissions, we are inclined to accept the argument of the appellants that the High Court in paragraph 9 of the impugned judgment (reproduced in paragraph 22 of this judgment), posed wrong questions to itself and that led to the erroneous and untenable conclusion deduced by itThe High Court, in our opinion, hastened to examine the justness of the reasons given by the Planning Authority for rejecting the proposal, vide the impugned communication dated 7.2.2015Suffice it to observe that the underlying concern of the State was about the increasing urbanisation problems and to assuage the hardship caused on that account to the general public. The Project, as envisaged and finalised was intended to achieve the objective of orderly development of Bangalore as a major industrial, commercial and residential city. The Integrated Infrastructure Corridor (the Project) was to consist of residential, industrial and commercial facilities, amongst other things, self- sustaining townships, expressways, utilities and amenities including power plants, industrial plants, water treatment plants and other infrastructural developments, as envisaged in the PTR, as amended. The objective of the Project was also to ensure smooth and accident-free traffic between Bangalore and Mysore; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; decongest traffic etc41. Notably, the PTR had suggested creation of seven Townships, but in the final decision, as noted in the FWA, only five Townships have been approved as part of the Project being Townships 1, 2, 4, 5 and 7. It was a conscious decision taken by the State to have limited number of self-sustaining Townships in the entire belt, so as to fulfil the National and State policy goals of population dispersion and to ensure proper functionality in the region. In other words, the FWA predicates that the Project Proponents will be allowed to develop only five Townships at the demarcated locations and which are self-sustaining with sufficient infrastructure for ensuring smooth and accident-free traffic on Bangalore-Mysore Expressway stretched to about 140 kilometres. Keeping that objective in mind, the stipulations and specifications in the FWA read with the relevant portion of the PTR will have to be examined. There is no room for giving liberal meaning to the stipulations and specifications which would inevitably defeat and frustrate the underlying objective of the Project - of orderly development of Bangalore City and to address the ever-increasing urbanisation problems42. Be it noted that the FWA executed between the State and the Project Proponents delineates the nature of contract and the scope of work to be carried out by the Project Proponents, as per the terms and conditions specified therein. It is an integrated project not only for construction and management of Expressway, but also creation of Townships at the demarcated location(s) as per the specifications and area earmarked therefor. The Infrastructure Corridor has been defined as having the same meaning as set forth in the recital (4 th WHEREAS clause) of the FWA. It means, collectively, the Land, the Toll Road, the Townships, the Power Plants, the Telecommunication Facilities, Water Supply Facilities and the Waste Water Treatment Facilities and other developments, and the acquisition, design, construction, engineering, financing and implementation thereof, as referred to in the PTR. Townships is, therefore, an identified and well-defined component of the Infrastructure Corridor ProjectFrom this definition, it is amply clear that only five Townships (each having different purpose – such as Corporate Centre, Industrial Centre, Ecotourism Centre, Heritage Centre and Commercial Centre) have been envisaged in the Infrastructure Corridor Project. The location(s) of these five Townships have been identified in the PTR. Besides the location(s), the extent of area to be utilised for creation of each Township has also been specified in the PTR, which applies proprio vigore to the expression Townships in the FWA. The term Townships, no doubt, includes housing, but a standalone group housing scheme cannot be regarded as a Township as suchTo put it differently, the Project Proponents are obliged to construct the five Townships at the demarcated location(s) only and to the extent of land specified therefor. Any other proposal of the Project Proponents would be nothing short of deviation from the FWA in particular. It is not necessary for us to dilate on the essential specifications and components to constitute a Township. Suffice it to observe that the Project Proponents are obliged to construct housing in the area demarcated for Townships and ensure that the other socio-economic infrastructure components such as schools, hospitals, shopping complexes, parks and open spaces etc. are also provided for within the Townships. The construction of the essential components including housing, as expressly provided in the FWA, must also comply with the municipal laws governing such constructions3. Indeed, while planning for the development of Townships, it is open to the Project Proponents to deviate from the PTR within the defined norms to the extent such deviation is required to enable the parties to realise the full benefits intended from development of the Project. But, that is required to be done only with prior written approval of the State. This is made amply clear by Article 7.1 of the FWA itselfConsidering the fact that the State is obliged to facilitate the Project Proponents to deviate from the PTR specifications adopted in the FWA for the development of Townships, that does not mean that the Project Proponents will set up housing complex at location(s) other than those demarcated for five Townships including not providing for other components of Townships in the proposal or limit the proposal only to one component, such as housing and excluding the other mandatory components - schools, hospitals, shopping complexes, parks and open spaces etc. Such interpretation cannot be countenanced and if accepted, it would inevitably defeat the very purpose of the well- defined project intended to address the increasing urbanisation problems and for orderly development of Bangalore City including smooth and accident-free traffic between Bangalore and Mysore ExpresswayEven on a fair reading of these agreements, we find that there is no express clause therein which would alter the scope of work and the obligations of both parties regarding the setting up of five self-sustaining Townships only at the demarcated location(s). The supplementary agreements, however, deal with other aspects with which we are not concerned nor are the same relevant to decide the matters in issue. Similarly, the Tripartite Agreement dated 9.8.2002 between the State, NICE and NECE also does not alter or modify the stipulations and specifications for setting up of five self-sustaining Townships only at the demarcated locations. The High Court has placed emphasis on clause 1.1.3 of the Tripartite AgreementWe fail to understand as to how this clause can be construed to mean that the original stipulations and specifications regarding the five designated Townships in the FWA stood modified or altered in any manner. This clause only deals with the meaning of Stage 1 of the Infrastructure CorridorIndeed, clause (c) thereof refers to Township–1, but that reference is in the context of basic development and sale of land, and by no stretch of imagination, can be construed to mean that Township–1 (Corporate Centre) could be set up at any other location much less at intersections demarcated in the PTR. The purpose of intersections is to provide for free flow of traffic across the area. All the five Townships referred to in the PTR are indisputably far away from intersections. Despite that, the Project Proponents have proposed for group housing scheme in Section A of the Project at intersections 5/7 thereat on the peripheral road. This is notwithstanding the fact that even the Tripartite Agreement does not modify the location(s) and specifications for the Townships referred to in the PTR, which forms part of the FWAThe ODP/Master Plan, no doubt, would apply and must be reckoned if any building proposal/plan is submitted to the Planning Authority. However, the Project Proponents are obliged to develop the Project only in the manner provided for in the FWA. For, the right to develop the Project bestowed on the Project Proponents flows, primarily, from the FWA and the supplementary agreements in that regard. Unless the FWA enables the Project Proponents to set up Townships at location(s) other than location(s) for five Townships demarcated in the FWA read with PTR and as standalone group housing scheme, the question of Project Proponents unilaterally using the allotted land for construction of a group housing scheme spread over in 42 acres and 30 guntas, that too at location(s) other than demarcated for five Townships, cannot be countenanced. Only upon grant of prior permission by the State in that regard, the stipulations in the FWA (about the location(s) of the Townships/group housing scheme), would stand relaxed and modified and the Project Proponents would then be entitled to pursue such proposal with the Planning Authority. The State can do so in terms of Article 3.2.3 and the Project Proponents can request the State in that regard by invoking the enabling provision in Article 7.1 (both of the FWA)47. To put it differently, the zone specified in the ODP/Master Plan per se is not enough to allow the Project Proponents to unilaterally use the land made over to them after acquisition from private land owners for the Project, for purpose and manner other than specified in the FWA and the PTR49. The fact remains that the original proceedings in the form of writ petitions were filed as public interest litigation before the High Court, challenging the Project in question, the stipulations in the FWA and because in the garb of the Project, acquisition of excess land was resorted to by the State, which would eventually result in undue profiteering by Project Proponents. In our opinion, neither the judgment rendered in appeal by this Court in All India Manufacturers Organisation (supra) nor the observation found in the order dated 3.11.2009 will be of any avail to the Project Proponents. For, the Court was not called upon to adjudicate the question even indirectly, as to whether the subject proposal for setting up of group housing scheme could be proceeded directly before the Planning Authority just because it is in conformity with the ODP/Master Plan and even though it is proposed at a location different than the demarcated location(s) for the five Townships in the FWA read with the PTR. No such plea was raised by the Project Proponents. In other words, none of the Court orders referred to by the Project Proponents had examined the questions/issues involved in these appeals50. Admittedly, in the present case, the modified proposal submitted by the Project Proponents on 5.5.2012 for developing 42 acres 30 guntas of land as group housing scheme, pertained to Survey Nos. 17(P), 18, 19, 20/1, 20/3, 21/1(P), 21/2A2(P), 21/2B(P), 21/2C(P), 21/2D(P) and 21/2E(P) at village Kommagatta, Kengeri Hobli, Bangalore South Taluk (at intersection 5/7, Section A of the Project on the peripheral road). It was not for setting up of Township as such. Neither the PTR nor the FWA envisages construction of standalone group housing scheme, that too at a location other than demarcated location(s) for five Townships. Thus, it was a clear case of deviation from the stipulations and specification contained in the FWA read with the PTR; and to relax or modify the same, prior permission of the State is made mandatory in terms of the Article 7.151. Notably, even the State had intimated the Planning Authority vide letter dated 19.12.2013 sent by the Principal Secretary, Public Works, Ports and Inland Water Transport Department, that in respect of change in land use and approval of residential developments, prior decision of the Empowered Committee should be obtained52. The fact remains that Article 7.1 of the FWA obliges the Project Proponents to submit proposal to the State for approval in case of any deviation. No such proposal was submitted to the State. Instead, the Project Proponents pursued the matter directly with the Planning Authority. In that sense, prior approval of the State for deviating from the FWA and in particular constructing housing complex at location other than demarcated for Townships, is not forthcoming. Admittedly, no such approval was taken. If such proposal was to be submitted to the State, it would be open to the State to examine the same on its own or refer the matter to the Empowered Committee constituted for resolving such issues, as envisaged in Article 4 of the FWAIndeed, the Empowered Committee is not a statutory committee, but it can be so constituted in terms of Article 4 read with Schedule 6, consisting of high officials of the concerned departments. This is only to facilitate quick processing of the proposals and implementation of the Infrastructure Corridor Project with mutual understanding and due consultation wherever necessary. We may assume that the Empowered Committee may not agree with the proposal, as it may be of the view that the deviation is quite substantial and would disrupt the core objective of the Integrated Infrastructure Corridor (the Project), which has been designed with purpose of holistic and orderly development of the region as a whole. In that eventuality, the Project Proponents would be required to resort to mechanism of resolution of disputes envisaged in Article 18 of the FWA,53. A priori, it must necessarily follow that the Project Proponents cannot and ought not to have directly approached the Planning Authority for grant of stated permission in reference to the provisions in the KTCP Act or ODP/Master Plan. As aforesaid, if the proposal to be submitted by the Project Proponents was compliant with the stipulations and specifications given in the FWA read with the PTR, only then the Project Proponents could justifiably approach the Planning Authority directly for grant of permission as per the extant regulations and municipal laws applicable in that regard, to construct buildings and structures for establishing a Township. In other words, the proposal/application of the Project Proponents would be a valid proposal/application to the Planning Authority only if it was to be in strict compliance with the land use specified in the FWA read with the PTR. In case of any deviation therefrom, it ought to accompany a formal prior approval of the State or the Empowered Committee, as the case may be, so that it can be processed further by the Planning AuthorityThis argument does not take the matter any further for the Project Proponents, inasmuch as the land in question has been allotted to the Project Proponents by the State after acquiring it from private land owners for implementation of the Project. For that reason, the use of the land should be strictly in conformity with the FWA and the applicable stipulations in the PTR. It is not open to the Project Proponents to contend that they can unilaterally develop the land allotted to them by the State in the manner other than specified in the FWA, being bound by the contractual obligations flowing from the FWA55. Notably, the State had granted prior permission to the Project Proponents to construct housing units at location(s) other than the five Townships. That was to accommodate the concerned land losers in connection with the same Project as per the policy of the State. Besides, the stated housing complex is not spread over in 42 acres and 30 guntas of land, so as to disrupt the holistic development envisaged in the FWA/PTR. In any case, that could be done only after obtaining prior approval of the State in that regard. As regards permission given to the private land owners, as aforesaid, that was given by the Planning Authority as per the applicable town planning regulations and in particular the use specified in the ODP/Master Plan. For, their lands did not form part of the Project and also because they are not bound by the stipulations in FWA in particular, unlike the Project Proponents56. Reverting to the factum of assurance given by the Planning Authority in the earlier round of writ petition(s) that the modified proposal/application dated 5.5.2012 will be considered in accordance with law and also that the State was party to that petition, in our view, it does not entail in acquiescence or waiver of the jurisdictional issue by the State (regarding necessity of seeking prior approval of Empowered Committee and No Objection (Certificate)/approval from the concerned State authorities). In that, the assurance given by the Planning Authority cannot come in the way of the State to urge that in law, the Project Proponents had no authority to develop the lands in question except as per the stipulations and specifications prescribed in the FWA read with the relevant clauses of the PTR. As a matter of fact, the earlier writ petitions were not decided on merits, but came to be disposed of leaving all contentions open, in lieu of the assurance given by the Planning Authority that it would consider the modified application as per law. In the present writ petitions, therefore, the State in the larger public interest is duty-bound to take a legal plea regarding jurisdictional issue including the extent of right of the writ petitioners (Project Proponents) being limited to stipulations in the FWA. Thus, neither the unilateral assurance given by the Planning Authority nor the fact that such specific reason has not been recorded by the Planning Authority in the impugned communication or that the State was party to the said writ petitions, would denude the State from raising the legal question regarding the scope of the FWA disentitling the Project Proponents for grant of any relief in the subject writ petitions. Further, the High Court in the guise of issuing mandamus to the Planning Authority for issuing the Commencement Certificate, in effect, has prevented the State from calling upon the Project Proponents to strictly abide by the stipulations in the FWA. That cannot be countenancedThis submission is founded on complete misreading of the observations in the decision of this Court in All India Manufacturers Organisation (supra). As noticed earlier, the lis before this Court including review petition(s) had arisen on account of the challenge to the FWA and also the acquisition of land for the purpose of the corridor project being excessive. Neither the High Court nor this Court was called upon to answer the issue now raised by the Project Proponents that it was free to construct standalone group housing scheme and at location(s) outside the demarcated five Townships (in the FWA/PTR)58. Thus understood, the argument of the Project Proponents that the plea taken by the State is hit by res judicata and in any case, by principles of constructive res judicata, cannot be countenanced. As a matter of fact, the Project Proponents did not pursue the plea of res judicata or of constructive res judicata before the High Court, as is evident from the points for consideration formulated by the High Court in paragraph 9 reproduced in the earlier part of this judgment (in paragraph 22). Even if it can be considered as a question of law, in our opinion, the same does not arise in the fact situation of the present case59. The Project Proponents had also placed reliance on the dictum of the High Court in S.M. Mohan Rao Nadgir vs. State of Karnataka & Ors. Decided by the High Court on 28.2.2005 in Writ Appeal No. 72/2004 and connected writ appeals, which, in our opinion has no bearing on the question that arises for our consideration. Paragraph 10 of the said decision as reproduced in the written submission filed by the Project Proponents, in fact merely sets out the factual matrix of that case and is certainly not an opinion of the Court answering the plea required to be adjudicated in the present appeals. Even the observation in Dakshinamurthy vs. B.K. Das, IAS & Ors. (2010) 1 SCC 64 , being an order passed in Contempt Petitions filed in Civil Appeal Nos. 3492-3494/2005 and connected appeals [decided on 20.4.2006, as reported in All India Manufacturers Organisation (supra)] will be of no avail to the Project Proponents. The fact recorded that the Project shall be allowed to be completed as per the alignment specified in the ODP/Master Plan, as noted therein, has no bearing on the questions dealt with in the present appeals60. Be it noted that the Project can be taken forward by the Project Proponents only in conformity with the stipulations and specifications in the FWA and the PTR. Additionally, the Project Proponents are also obliged to ensure compliance of ODP/Master Plan and if so complied, the Planning Authority cannot create any impediment. If the State accords approval to the deviation in terms of the FWA itself, the Project Proponents may be competent to carry on such a work. To put it differently, prior approval of the State for deviation from the stipulations and specifications in the FWA is the quintessence. We do not wish to burden this judgment with the argument about attitude of the concerned authorities in creating obstructions in completion of the Project because no official has been named in the writ petitions filed by the Project Proponents being responsible for that situation61. The argument of the Project Proponents that the housing complexes can be constructed even at intersections by placing reliance on the observations in All India Manufacturers Organisation (supra), is begging the questionThe issue considered in the earlier rounds of litigation by this Court was on the basis of stand taken by the State to defend the Project, the FWA and the acquisition of land for the purpose of the project. In the present appeals, the matter is required to be examined in the context of the stand of the Project Proponents that they are free to carry on construction of housing scheme at any location of their choice even outside the demarcated location(s) for five Townships, stretched over about 140 kilometres of the expressway, in the FWA and the PTR62. Reverting to the dictum in M. Nagabhushana (supra), the same will also be of no avail to the Project Proponents as it does not militate against the Planning Authority and State, in particular. As already noted, the State is competent to maintain its stand that the legal right of Project Proponents flows only from the terms and conditions specified in the FWA read with the PTR. That is a just plea available to the State and must be taken by it in the larger public interest to ensure that the objective of the Integrated Corridor Project (the Project) is not marginalised, undermined or frustrated in any manner. If development as desired by the Project Proponents on the stretch of 140 kilometres of the expressway is allowed, it would result in development in manner other than the one planned and conceived in the FWA and the PTR, the objective of which is to provide for holistic and orderly development of the self-sustaining Townships with all basic infrastructure and civic facilities and to ensure smooth and accident-free traffic between Bangalore and Mysore; population dispersal as per the National/State policy; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; and decongest traffic etc63. It is not necessary for us to dilate on other aspects regarding the efficacy of the FWA and the PTR or the other agreements executed between the parties, having held that it is for the State to consider the proposal for allowing the Project Proponents to deviate from the stipulations and specifications of the FWA and the PTR and until that decision is taken by the State or its instrumentalities including the Empowered Committee constituted in terms of the FWA, the Planning Authority cannot process the proposal/application directly submitted to it by the Project Proponents. Further, such non- compliant proposal/application submitted by the Project Proponents directly to the Planning Authority must be regarded as infirm, invalid and non-est in law65. Suffice it to observe that assuming the High Court was right in taking the view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the StateWe are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.201266. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.
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view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the State. The Project Proponents would, however, rely on the exposition in paragraph 27 of the decision of this Court in Badrinath vs. Government of Tamil Nadu & Ors. (2000) 8 SCC 395 , which reads thus: - 27. This flows from the general principle applicable to consequential orders. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime – like the recommendation of the State and by the UPSC and the action taken thereon – would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order. Reliance is also placed on Section 15 of the KTCP Act, in particular, proviso thereto, which reads thus: - 15 - Permission for development of building or land.- (1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate: Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct. (2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the regulation finally approved under sub-section (3) of section 13. (3) Subject to the provisions of section 16, no compensation shall be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. (4) If any person does any work on, or makes any use of, any property in contravention of section 14 or of sub- section (1) of this section, the Planning Authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to such Authority under this Act from the person in default or from the owner of the land. Explanation. -The power to grant necessary permission under this section for a change of user of land shall include the power to grant permission for the retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an outline development plan under sub-section (1) of section 10 or for the continuance of any use of land instituted before the said date. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (1) or sub-section (4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed. (7) The prescribed authority may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such orders as it deems fit, as far as may be, within four months from the date of receipt of the appeal. (emphasis supplied) We are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.2012. 66. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.
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Manufacturers Organisation (supra)] will be of no avail to the Project Proponents. The fact recorded that the Project shall be allowed to be completed as per the alignment specified in the ODP/Master Plan, as noted therein, has no bearing on the questions dealt with in the present appeals60. Be it noted that the Project can be taken forward by the Project Proponents only in conformity with the stipulations and specifications in the FWA and the PTR. Additionally, the Project Proponents are also obliged to ensure compliance of ODP/Master Plan and if so complied, the Planning Authority cannot create any impediment. If the State accords approval to the deviation in terms of the FWA itself, the Project Proponents may be competent to carry on such a work. To put it differently, prior approval of the State for deviation from the stipulations and specifications in the FWA is the quintessence. We do not wish to burden this judgment with the argument about attitude of the concerned authorities in creating obstructions in completion of the Project because no official has been named in the writ petitions filed by the Project Proponents being responsible for that situation61. The argument of the Project Proponents that the housing complexes can be constructed even at intersections by placing reliance on the observations in All India Manufacturers Organisation (supra), is begging the questionThe issue considered in the earlier rounds of litigation by this Court was on the basis of stand taken by the State to defend the Project, the FWA and the acquisition of land for the purpose of the project. In the present appeals, the matter is required to be examined in the context of the stand of the Project Proponents that they are free to carry on construction of housing scheme at any location of their choice even outside the demarcated location(s) for five Townships, stretched over about 140 kilometres of the expressway, in the FWA and the PTR62. Reverting to the dictum in M. Nagabhushana (supra), the same will also be of no avail to the Project Proponents as it does not militate against the Planning Authority and State, in particular. As already noted, the State is competent to maintain its stand that the legal right of Project Proponents flows only from the terms and conditions specified in the FWA read with the PTR. That is a just plea available to the State and must be taken by it in the larger public interest to ensure that the objective of the Integrated Corridor Project (the Project) is not marginalised, undermined or frustrated in any manner. If development as desired by the Project Proponents on the stretch of 140 kilometres of the expressway is allowed, it would result in development in manner other than the one planned and conceived in the FWA and the PTR, the objective of which is to provide for holistic and orderly development of the self-sustaining Townships with all basic infrastructure and civic facilities and to ensure smooth and accident-free traffic between Bangalore and Mysore; population dispersal as per the National/State policy; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; and decongest traffic etc63. It is not necessary for us to dilate on other aspects regarding the efficacy of the FWA and the PTR or the other agreements executed between the parties, having held that it is for the State to consider the proposal for allowing the Project Proponents to deviate from the stipulations and specifications of the FWA and the PTR and until that decision is taken by the State or its instrumentalities including the Empowered Committee constituted in terms of the FWA, the Planning Authority cannot process the proposal/application directly submitted to it by the Project Proponents. Further, such non- compliant proposal/application submitted by the Project Proponents directly to the Planning Authority must be regarded as infirm, invalid and non-est in law65. Suffice it to observe that assuming the High Court was right in taking the view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the StateWe are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.201266. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.
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KUNHAMINA UMMA Vs. PARU AMMA
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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 enjoymnent of the property by the transferee in lieu of rent or perquisitiss. 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 Hussian Thangal v. Ali 1961 KLT. 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 a 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 etc. v. Jat Mamdaji Kalaji (deceased) through L. Rs.Jat Saheb Khan Mamdaji etc. (1969) 3 SCR. 690 said that payment of revenue and other dues to the Stare would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under S.76 (e) of the Transfer of Property Act in the absence of a contrac 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 a 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 is 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 purappad to the jenmi and that the annual amount 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 No.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 No.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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1[ds]The test to be applied is whether the purpose of the transaction is enjoyment of the property by the transferee or whether it is intended to secure the repayment of debt by transfer of interest in the property.The demands 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 transition, namely, that the tarward 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 enjoymnent of the property by the transferee in lieu of rent or perquisitiss. 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 Hussian Thangal v. Ali 1961 KLT. 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 ofis sometimes a common feature in the case of possessory mortgage though the existence of aby itself will not be conclusive of theHigh 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 a 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.were sold to the first plaintiff under Ex. A. 2 was Rs. 5000 out of which Rs. 2500 was to go is discharge of the amount under Ex.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 purappad to the jenmi and that the annual amount was directed to be paid as revenue of the property which came to Rs.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.defendants No.1 and 2 entered into a partition agreement evidenced by Ex.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.and the amount of Rs. 2000/there was no division by metes and bounds. This would also point to the conclusion that the defendants No.1 and 2 never treated Ex.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 thedeeds 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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### 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:
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 enjoymnent of the property by the transferee in lieu of rent or perquisitiss. 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 Hussian Thangal v. Ali 1961 KLT. 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 a 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 etc. v. Jat Mamdaji Kalaji (deceased) through L. Rs.Jat Saheb Khan Mamdaji etc. (1969) 3 SCR. 690 said that payment of revenue and other dues to the Stare would not clothe the occupants with the right of the tenants. Ordinarily, mortgagees under S.76 (e) of the Transfer of Property Act in the absence of a contrac 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 a 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 is 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 purappad to the jenmi and that the annual amount 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 No.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 No.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.
### Response:
1
### Explanation:
The test to be applied is whether the purpose of the transaction is enjoyment of the property by the transferee or whether it is intended to secure the repayment of debt by transfer of interest in the property.The demands 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 transition, namely, that the tarward 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 enjoymnent of the property by the transferee in lieu of rent or perquisitiss. 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 Hussian Thangal v. Ali 1961 KLT. 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 ofis sometimes a common feature in the case of possessory mortgage though the existence of aby itself will not be conclusive of theHigh 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 a 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.were sold to the first plaintiff under Ex. A. 2 was Rs. 5000 out of which Rs. 2500 was to go is discharge of the amount under Ex.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 purappad to the jenmi and that the annual amount was directed to be paid as revenue of the property which came to Rs.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.defendants No.1 and 2 entered into a partition agreement evidenced by Ex.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.and the amount of Rs. 2000/there was no division by metes and bounds. This would also point to the conclusion that the defendants No.1 and 2 never treated Ex.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 thedeeds 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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RAMJEE POWER CONSTRUCTION LTD Vs. JHARKHAND URJA VIKAS NIGAM LIMITED AND ANOTHER
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upheld the order of learned Sub-Judge I, Ranchi, condoning the delay in filing application under section 34 of the Act. The review petition filed by the petitioner was also rejected. Hence, these special leave petitions. Leave granted. The application under section 34 of the Act can only be filed within a time stipulated in section 34 of the Act which reads as follows : 34. Application for setting aside arbitral award. - (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3). (2) An arbitral award may be set aside by the court only if-(a) The party making the application furnishes proof that- (i) A party was under some incapacity, or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was inconflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) The court finds that- (i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) The arbitral award is in conflict with the public policy of India. [Explanation 1.- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, - (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is conflict with the most basic notions of morality or justice. Explanation 2. - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award : Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.] (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party 4. If the application under section 34 of the Act is not filed within the stipulated time of three months, it can be filed within further 30 days vide the proviso. 5. In these cases clearly there was no scope for having the delay condoned because the application under section 34 of the Act was well beyond even the extended period of 30 days. 6. The High Court appears to have fully cognizant of this fact and has even observed that the time limit prescribed under section 34 of the Act to challenge the award is no doubt absolute and unextendable by the court under section 5 of the Limitation Act. Yet observing that this is an exceptional case, it has condoned the delay because the officers of the erstwhile Board adopted a delaying tactics in various proceedings with an intention to favour the appellant. 7. Assuming that the High Court was justified in making these observations about the intention of the officers, we are clearly of the view that it had no power to condone the delay in filing the application under section 34 of the Act beyond the period prescribed by the Parliament. It was not permissible for the High Court to open a window in the wall of limitation put up by Parliament.
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1[ds]4. If the application under section 34 of the Act is not filed within the stipulated time of three months, it can be filed within further 30 days vide the proviso.5. In these cases clearly there was no scope for having the delay condoned because the application under section 34 of the Act was well beyond even the extended period of 30 days.6. The High Court appears to have fully cognizant of this fact and has even observed that the time limit prescribed under section 34 of the Act to challenge the award is no doubt absolute and unextendable by the court under section 5 of the Limitation Act. Yet observing that this is an exceptional case, it has condoned the delay because the officers of the erstwhile Board adopted a delaying tactics in various proceedings with an intention to favour the appellant.7. Assuming that the High Court was justified in making these observations about the intention of the officers, we are clearly of the view that it had no power to condone the delay in filing the application under section 34 of the Act beyond the period prescribed by the Parliament. It was not permissible for the High Court to open a window in the wall of limitation put up by Parliament.
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### 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:
upheld the order of learned Sub-Judge I, Ranchi, condoning the delay in filing application under section 34 of the Act. The review petition filed by the petitioner was also rejected. Hence, these special leave petitions. Leave granted. The application under section 34 of the Act can only be filed within a time stipulated in section 34 of the Act which reads as follows : 34. Application for setting aside arbitral award. - (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3). (2) An arbitral award may be set aside by the court only if-(a) The party making the application furnishes proof that- (i) A party was under some incapacity, or (ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was inconflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) The court finds that- (i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) The arbitral award is in conflict with the public policy of India. [Explanation 1.- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, - (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is conflict with the most basic notions of morality or justice. Explanation 2. - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award : Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.] (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party 4. If the application under section 34 of the Act is not filed within the stipulated time of three months, it can be filed within further 30 days vide the proviso. 5. In these cases clearly there was no scope for having the delay condoned because the application under section 34 of the Act was well beyond even the extended period of 30 days. 6. The High Court appears to have fully cognizant of this fact and has even observed that the time limit prescribed under section 34 of the Act to challenge the award is no doubt absolute and unextendable by the court under section 5 of the Limitation Act. Yet observing that this is an exceptional case, it has condoned the delay because the officers of the erstwhile Board adopted a delaying tactics in various proceedings with an intention to favour the appellant. 7. Assuming that the High Court was justified in making these observations about the intention of the officers, we are clearly of the view that it had no power to condone the delay in filing the application under section 34 of the Act beyond the period prescribed by the Parliament. It was not permissible for the High Court to open a window in the wall of limitation put up by Parliament.
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4. If the application under section 34 of the Act is not filed within the stipulated time of three months, it can be filed within further 30 days vide the proviso.5. In these cases clearly there was no scope for having the delay condoned because the application under section 34 of the Act was well beyond even the extended period of 30 days.6. The High Court appears to have fully cognizant of this fact and has even observed that the time limit prescribed under section 34 of the Act to challenge the award is no doubt absolute and unextendable by the court under section 5 of the Limitation Act. Yet observing that this is an exceptional case, it has condoned the delay because the officers of the erstwhile Board adopted a delaying tactics in various proceedings with an intention to favour the appellant.7. Assuming that the High Court was justified in making these observations about the intention of the officers, we are clearly of the view that it had no power to condone the delay in filing the application under section 34 of the Act beyond the period prescribed by the Parliament. It was not permissible for the High Court to open a window in the wall of limitation put up by Parliament.
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COMMISSIONER OF CUSTOMS, HYDERABAD Vs. PENNAR INDUSTRIES LTD. AND OTHERS
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exchequer. 16. The aforesaid Order-in-Original of DGFT was under the provisions of EXIM Policy. It is held by this Court in Sheshank Sea Foods Pvt. Ltd. (supra) that the same would not be binding on the customs authorities and as far as action taken under the Customs Act is concerned, the same is to be covered by the provisions of the Customs Act. The relevant discussion thereupon which takes note of the concerned provisions of the Act as well is reproduced below: 6. Learned Counsel placed reliance upon a communication to all Collectors of Central Excise issued by the Central Board of Excise and Customs on 13-5-1969, on the subject of whether, in the event of the contravention of a post-importation condition of an import licence, it was open to the Customs authorities to confiscate imported goods Under Section 111(o) of the Customs Act. The said communication stated that before Section 111(o) could be attracted there had to be an exemption, subject to a condition, from a prohibition:. Where a valid licence has been issued, it is not a case of an exemption from the prohibition. Therefore, if a post-importation condition of a licence is contravened, it cannot be said that any condition of exemption is contravened. For the reasons stated above, the Ministry of Law have advised that it may not be possible to take action Under Section 111(o) with respect to the conditions of the licence relating to the use of goods after they are cleared from the customs charge. 7. Section 111(o) is the sheet-anchor of the Respondents case. It reads thus: 111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation- xxx (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer. 8. Section 111(O) states that when goods are exempted from customs duty subject to a condition and the condition is not observed, the goods are liable to confiscation. The case of the Respondents is that the goods imported by the Appellants, which availed of the said exemption subject to the condition that they would not be sold, loaned, transferred or disposed of in any other manner, had been disposed of by the Appellants. The Customs authorities, therefore, clearly had the power to take action under the provisions of Section 111(o). 9. We do not find in the provisions of the Import and Export Policy or the Handbook of Procedures issued by the Ministry of Commerce, Government of India, anything that even remotely suggests that the aforesaid power of the Customs authorities had been taken away or abridged or that an investigation into such alleged breach could be conducted only by the licensing authority. That the licensing authority is empowered to conduct such an investigation does not by itself preclude the Customs authorities from doing so. 10. The communication of the Central Board of Excise and Customs dated 13-5-1969, refers to the breach of the condition of a licence and suggests that it may not be possible to take action Under Section 111(o) in respect thereof. It is true that the terms of the said exemption notification were made part of the Appellants licences and, in that sense, a breach of the terms of the said exemption notification is also a breach of the terms of the licence, entitling the licensing authority to investigate. But the breach is not only of the terms of the licence; it is also a breach of the condition in the exemption notification upon which the Appellants obtained exemption from payment of customs duty and, therefore, the terms of Section 111(o) enable the Customs authorities to investigate. 17. The decision in the aforesaid case, which is of the Coordinate Bench, binds us. 18. Judgment in the case of Titan Medical Systems (P) Ltd. (supra), which was referred to by Mr. Banerji, has no relevance at all. In that case, one of the conditions of duty exemption scheme contained in Notification No. 116/88-CUS was for conversion of raw material into the resultant product involving substantial manufacturing activity. The Court considered the scope of substantial manufacture and held that assembly of various components into finished machines (ultrasound scanners in that case) amounted to substantial manufacture and it was not necessary that manufacturing of substantial amount of component is required. Obviously, the issue was altogether different which has no bearing on the controversy involved in the present case. 19. Since the conditions of the exemption notification are not fulfilled and the law requires strict compliance of the exemption notification, the Assessee becomes liable to pay the import duty which was payable, but for the benefit of exemption Notification No. 30/1997, which was obtained by the Assessee. 20. Though we have rendered this decision keeping in view the legal position discussed above, at the same time, we deem it necessary to observe that the Government should bestow its consideration and make appropriate provision dealing with such situations. After all, the Exemption Notification No. 30/1997 has been issued to implement and effect the EXIM Policy provisions. Therefore, the purport of the exemption notification is to advance the objectives of the EXIM Policy. When the DGFT has itself accepted the benefits of the Assessee and carried out the amendment in the import licence and further that the Assessee could make the exports on the basis of the amendment; albeit through third party, such person should not be left high and dry. Therefore, necessary amendments are needed in such notifications making appropriate provisions to meet these types of eventualities. We are hopeful that the competent authority shall look into these aspects and cater for such situations as well so that unnecessary hardship is not caused to the bona fide Assessees as well.
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1[ds]9. Notification No. 30/1997 provides for Exemption to materials imported against advance licence with actual user condition. It is issued by the Central Government in exercise of powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 after arriving at a satisfaction that it is necessary in the public interest so to do. It exempts materials imported in India, against the advance licence with actual user condition in terms of para 7.4 of the EXIM Policy 1997-2000, from the whole of the duty of customs leviable thereon, including the additional duty leviable thereon under the Customs Tariff Act, subject to certain conditions mentioned in this Notification. In this behalf, we are concerned with condition Nos. (v) to (viii) as there is no dispute that other conditions have been satisfied. These conditions are reproduced below:(v) that the export obligation is discharged within the period specified in the said certificate or within such extended period as may be granted by the Licensing Authority by exporting resultants products manufactured in India which are specified in Part E of the said certificate (hereinafter referred to as resultant products) and in respect of which facility Under Rule 12(1)(b) or Rule 13(1)(b) of the Central Excise Rules, 1944 has not been availed in respect of materials permitted under the said license;(vi) that the importer produces evidence of discharge of export obligation to the satisfaction of the Assistant Commissioner of Customs within a period of 30 days of the expiry of period allowed for fulfillment of export obligation, or within such extended period as the said Assistant Commissioner of Customs may allow;(vii) exempt materials shall not be disposed of or utilized in any manner except for utilization in discharge of export obligation or for replenishment of such materials and the materials so replenished shall not be sold or transferred to any other person;(viii) that in relation to an Advance Licence issued to a Merchant Ex-porter-(a) the name and address of the supporting manufacturer is specified in the said licence and the bond required to be executed by the importer in terms of condition (ii) shall be executed jointly by the Merchant Ex-porter and the supporting manufacturer binding themselves jointly and severally to comply with the conditions specified in this notification; and(b) exempt materials are utilized in the factory of such supporting manufacturer in terms of condition (vii).11. From the reading of this Notification, it becomes clear that the material which is imported has to be against an advance licence with actual user condition in terms of para 7.4 of the EXIM Policy 1997-2000. It is not in dispute that the Assessee was in possession of such an advance licence issued by DGFT and this licence was with actual user condition, namely, the material so imported was to be used by the Assessee itself in its factory for manufacturing the items specified therein. As per Condition No. (ii), the Assessee was required to execute a bond at the time of clearance of the imported materials to pay on demand an amount equal to the duty leviable, but for the exemption, on the imported materials in respect of which the conditions specified in this Notification have not been complied with, together with interest @ 24% per annum from the date of clearance of the said materials. The export obligation was contained in the licence issued by the DGFT, which was to be adjusted during the period specified in the said certificate or within such extended period, as may be granted by the licensing authority (DGFT in this case). The Assessee was supposed to produce evidence of discharge of export obligation to the satisfaction of the Assistant Commissioner of Customs within a period of 30 days of the expiry of the period allowed for fulfillment of the export obligation or within extended period as allowed. Stringent stipulation is contained in Condition (vii), which is very significant and relevant for our purposes. The Respondent was not supposed to dispose of or utilize the exempt materials in any manner except for utilization in discharge of the export obligation.12. It would mean that not only the raw material imported (in respect of which exemption from duty is sought) is to be utilised in the manner mentioned, namely, for manufacture of specified products by the importer/Assessee itself, this very material has to be utilised in discharge of export obligation. It, thus, becomes abundantly clear that as per this Notification, in order to avail the exemption from import duty, it is necessary to make export of the product manufactured from that very raw material which is imported. This condition is admittedly not fulfilled by the Assessee as there is no export of the goods from the raw material so utilised. Instead, export is of the product manufactured from other material, that too through third party. Therefore, in stricto senso, the mandate of the said Notification has not been fulfilled by the Assessee.14. In the present case, advance licence was issued to the Assessee in terms of para 7.4 of the EXIM Policy 1997-2000. It was in terms of this licence that the import of the specified material was permitted on the condition that the Assessee is obligated to meet the export obligation as contained in the licence issued by the DGFT. No doubt, this obligation in the export licence, read with conditions contained in Notification No. 30/1997, puts the onus upon the Assessee to make the exports of the products produced from the material so imported. However, it is the case of the Assessee that for certain bona fide reasons (as the bona fides of the Assessee have been accepted by the DGFT), as the Assessee was not able to export same very goods produced by it from the material imported on which he was given exemption from payment of the import duty, the DGFT allowed the Assessee to meet the export obligation through third party.15. It is also correct that insofar as DGFT is concerned, it has passed Order-in-Original dated 03.08.2011 holding that the export through third party would tantamount to fulfilling the export obligation contained in the licence. However, since the total import entitlement of the firm, as per the amended licences, worked to 2123.1538 MTs and the Assessee had imported 2712.41 MTs, it resulted in excess import of 589.26 MTs. Therefore, only on this excess import, customs duty was payable, which was directed to be paid along with interest calculated @ 15% from the date of first import to the date on which last consignment of exports were effected by the Assessee through third party. The DGFT, in its order, also mentioned that there was no misutilization of the raw material imported by the Assessee and there was no violation of any other conditions of the licence causing Revenue loss at the cost of exchequer.16. The aforesaid Order-in-Original of DGFT was under the provisions of EXIM Policy. It is held by this Court in Sheshank Sea Foods Pvt. Ltd. (supra) that the same would not be binding on the customs authorities and as far as action taken under the Customs Act is concerned, the same is to be covered by the provisions of the Customs Act. The relevant discussion thereupon which takes note of the concerned provisions of the Act as well is reproduced below:6. Learned Counsel placed reliance upon a communication to all Collectors of Central Excise issued by the Central Board of Excise and Customs on 13-5-1969, on the subject of whether, in the event of the contravention of a post-importation condition of an import licence, it was open to the Customs authorities to confiscate imported goods Under Section 111(o) of the Customs Act. The said communication stated that before Section 111(o) could be attracted there had to be an exemption, subject to a condition, from a prohibition:. Where a valid licence has been issued, it is not a case of an exemption from the prohibition. Therefore, if a post-importation condition of a licence is contravened, it cannot be said that any condition of exemption is contravened. For the reasons stated above, the Ministry of Law have advised that it may not be possible to take action Under Section 111(o) with respect to the conditions of the licence relating to the use of goods after they are cleared from the customs charge.7. Section 111(o) is the sheet-anchor of the Respondents case. It reads thus:111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation-(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer.8. Section 111(O) states that when goods are exempted from customs duty subject to a condition and the condition is not observed, the goods are liable to confiscation. The case of the Respondents is that the goods imported by the Appellants, which availed of the said exemption subject to the condition that they would not be sold, loaned, transferred or disposed of in any other manner, had been disposed of by the Appellants. The Customs authorities, therefore, clearly had the power to take action under the provisions of Section 111(o).9. We do not find in the provisions of the Import and Export Policy or the Handbook of Procedures issued by the Ministry of Commerce, Government of India, anything that even remotely suggests that the aforesaid power of the Customs authorities had been taken away or abridged or that an investigation into such alleged breach could be conducted only by the licensing authority. That the licensing authority is empowered to conduct such an investigation does not by itself preclude the Customs authorities from doing so.10. The communication of the Central Board of Excise and Customs dated 13-5-1969, refers to the breach of the condition of a licence and suggests that it may not be possible to take action Under Section 111(o) in respect thereof. It is true that the terms of the said exemption notification were made part of the Appellants licences and, in that sense, a breach of the terms of the said exemption notification is also a breach of the terms of the licence, entitling the licensing authority to investigate. But the breach is not only of the terms of the licence; it is also a breach of the condition in the exemption notification upon which the Appellants obtained exemption from payment of customs duty and, therefore, the terms of Section 111(o) enable the Customs authorities to investigate.17. The decision in the aforesaid case, which is of the Coordinate Bench, binds us.18. Judgment in the case of Titan Medical Systems (P) Ltd. (supra), which was referred to by Mr. Banerji, has no relevance at all. In that case, one of the conditions of duty exemption scheme contained in Notification No. 116/88-CUS was for conversion of raw material into the resultant product involving substantial manufacturing activity. The Court considered the scope of substantial manufacture and held that assembly of various components into finished machines (ultrasound scanners in that case) amounted to substantial manufacture and it was not necessary that manufacturing of substantial amount of component is required. Obviously, the issue was altogether different which has no bearing on the controversy involved in the present case.19. Since the conditions of the exemption notification are not fulfilled and the law requires strict compliance of the exemption notification, the Assessee becomes liable to pay the import duty which was payable, but for the benefit of exemption Notification No. 30/1997, which was obtained by the Assessee.20. Though we have rendered this decision keeping in view the legal position discussed above, at the same time, we deem it necessary to observe that the Government should bestow its consideration and make appropriate provision dealing with such situations. After all, the Exemption Notification No. 30/1997 has been issued to implement and effect the EXIM Policy provisions. Therefore, the purport of the exemption notification is to advance the objectives of the EXIM Policy. When the DGFT has itself accepted the benefits of the Assessee and carried out the amendment in the import licence and further that the Assessee could make the exports on the basis of the amendment; albeit through third party, such person should not be left high and dry. Therefore, necessary amendments are needed in such notifications making appropriate provisions to meet these types of eventualities. We are hopeful that the competent authority shall look into these aspects and cater for such situations as well so that unnecessary hardship is not caused to the bona fide Assessees as well.
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### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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exchequer. 16. The aforesaid Order-in-Original of DGFT was under the provisions of EXIM Policy. It is held by this Court in Sheshank Sea Foods Pvt. Ltd. (supra) that the same would not be binding on the customs authorities and as far as action taken under the Customs Act is concerned, the same is to be covered by the provisions of the Customs Act. The relevant discussion thereupon which takes note of the concerned provisions of the Act as well is reproduced below: 6. Learned Counsel placed reliance upon a communication to all Collectors of Central Excise issued by the Central Board of Excise and Customs on 13-5-1969, on the subject of whether, in the event of the contravention of a post-importation condition of an import licence, it was open to the Customs authorities to confiscate imported goods Under Section 111(o) of the Customs Act. The said communication stated that before Section 111(o) could be attracted there had to be an exemption, subject to a condition, from a prohibition:. Where a valid licence has been issued, it is not a case of an exemption from the prohibition. Therefore, if a post-importation condition of a licence is contravened, it cannot be said that any condition of exemption is contravened. For the reasons stated above, the Ministry of Law have advised that it may not be possible to take action Under Section 111(o) with respect to the conditions of the licence relating to the use of goods after they are cleared from the customs charge. 7. Section 111(o) is the sheet-anchor of the Respondents case. It reads thus: 111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation- xxx (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer. 8. Section 111(O) states that when goods are exempted from customs duty subject to a condition and the condition is not observed, the goods are liable to confiscation. The case of the Respondents is that the goods imported by the Appellants, which availed of the said exemption subject to the condition that they would not be sold, loaned, transferred or disposed of in any other manner, had been disposed of by the Appellants. The Customs authorities, therefore, clearly had the power to take action under the provisions of Section 111(o). 9. We do not find in the provisions of the Import and Export Policy or the Handbook of Procedures issued by the Ministry of Commerce, Government of India, anything that even remotely suggests that the aforesaid power of the Customs authorities had been taken away or abridged or that an investigation into such alleged breach could be conducted only by the licensing authority. That the licensing authority is empowered to conduct such an investigation does not by itself preclude the Customs authorities from doing so. 10. The communication of the Central Board of Excise and Customs dated 13-5-1969, refers to the breach of the condition of a licence and suggests that it may not be possible to take action Under Section 111(o) in respect thereof. It is true that the terms of the said exemption notification were made part of the Appellants licences and, in that sense, a breach of the terms of the said exemption notification is also a breach of the terms of the licence, entitling the licensing authority to investigate. But the breach is not only of the terms of the licence; it is also a breach of the condition in the exemption notification upon which the Appellants obtained exemption from payment of customs duty and, therefore, the terms of Section 111(o) enable the Customs authorities to investigate. 17. The decision in the aforesaid case, which is of the Coordinate Bench, binds us. 18. Judgment in the case of Titan Medical Systems (P) Ltd. (supra), which was referred to by Mr. Banerji, has no relevance at all. In that case, one of the conditions of duty exemption scheme contained in Notification No. 116/88-CUS was for conversion of raw material into the resultant product involving substantial manufacturing activity. The Court considered the scope of substantial manufacture and held that assembly of various components into finished machines (ultrasound scanners in that case) amounted to substantial manufacture and it was not necessary that manufacturing of substantial amount of component is required. Obviously, the issue was altogether different which has no bearing on the controversy involved in the present case. 19. Since the conditions of the exemption notification are not fulfilled and the law requires strict compliance of the exemption notification, the Assessee becomes liable to pay the import duty which was payable, but for the benefit of exemption Notification No. 30/1997, which was obtained by the Assessee. 20. Though we have rendered this decision keeping in view the legal position discussed above, at the same time, we deem it necessary to observe that the Government should bestow its consideration and make appropriate provision dealing with such situations. After all, the Exemption Notification No. 30/1997 has been issued to implement and effect the EXIM Policy provisions. Therefore, the purport of the exemption notification is to advance the objectives of the EXIM Policy. When the DGFT has itself accepted the benefits of the Assessee and carried out the amendment in the import licence and further that the Assessee could make the exports on the basis of the amendment; albeit through third party, such person should not be left high and dry. Therefore, necessary amendments are needed in such notifications making appropriate provisions to meet these types of eventualities. We are hopeful that the competent authority shall look into these aspects and cater for such situations as well so that unnecessary hardship is not caused to the bona fide Assessees as well.
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any other conditions of the licence causing Revenue loss at the cost of exchequer.16. The aforesaid Order-in-Original of DGFT was under the provisions of EXIM Policy. It is held by this Court in Sheshank Sea Foods Pvt. Ltd. (supra) that the same would not be binding on the customs authorities and as far as action taken under the Customs Act is concerned, the same is to be covered by the provisions of the Customs Act. The relevant discussion thereupon which takes note of the concerned provisions of the Act as well is reproduced below:6. Learned Counsel placed reliance upon a communication to all Collectors of Central Excise issued by the Central Board of Excise and Customs on 13-5-1969, on the subject of whether, in the event of the contravention of a post-importation condition of an import licence, it was open to the Customs authorities to confiscate imported goods Under Section 111(o) of the Customs Act. The said communication stated that before Section 111(o) could be attracted there had to be an exemption, subject to a condition, from a prohibition:. Where a valid licence has been issued, it is not a case of an exemption from the prohibition. Therefore, if a post-importation condition of a licence is contravened, it cannot be said that any condition of exemption is contravened. For the reasons stated above, the Ministry of Law have advised that it may not be possible to take action Under Section 111(o) with respect to the conditions of the licence relating to the use of goods after they are cleared from the customs charge.7. Section 111(o) is the sheet-anchor of the Respondents case. It reads thus:111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation-(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer.8. Section 111(O) states that when goods are exempted from customs duty subject to a condition and the condition is not observed, the goods are liable to confiscation. The case of the Respondents is that the goods imported by the Appellants, which availed of the said exemption subject to the condition that they would not be sold, loaned, transferred or disposed of in any other manner, had been disposed of by the Appellants. The Customs authorities, therefore, clearly had the power to take action under the provisions of Section 111(o).9. We do not find in the provisions of the Import and Export Policy or the Handbook of Procedures issued by the Ministry of Commerce, Government of India, anything that even remotely suggests that the aforesaid power of the Customs authorities had been taken away or abridged or that an investigation into such alleged breach could be conducted only by the licensing authority. That the licensing authority is empowered to conduct such an investigation does not by itself preclude the Customs authorities from doing so.10. The communication of the Central Board of Excise and Customs dated 13-5-1969, refers to the breach of the condition of a licence and suggests that it may not be possible to take action Under Section 111(o) in respect thereof. It is true that the terms of the said exemption notification were made part of the Appellants licences and, in that sense, a breach of the terms of the said exemption notification is also a breach of the terms of the licence, entitling the licensing authority to investigate. But the breach is not only of the terms of the licence; it is also a breach of the condition in the exemption notification upon which the Appellants obtained exemption from payment of customs duty and, therefore, the terms of Section 111(o) enable the Customs authorities to investigate.17. The decision in the aforesaid case, which is of the Coordinate Bench, binds us.18. Judgment in the case of Titan Medical Systems (P) Ltd. (supra), which was referred to by Mr. Banerji, has no relevance at all. In that case, one of the conditions of duty exemption scheme contained in Notification No. 116/88-CUS was for conversion of raw material into the resultant product involving substantial manufacturing activity. The Court considered the scope of substantial manufacture and held that assembly of various components into finished machines (ultrasound scanners in that case) amounted to substantial manufacture and it was not necessary that manufacturing of substantial amount of component is required. Obviously, the issue was altogether different which has no bearing on the controversy involved in the present case.19. Since the conditions of the exemption notification are not fulfilled and the law requires strict compliance of the exemption notification, the Assessee becomes liable to pay the import duty which was payable, but for the benefit of exemption Notification No. 30/1997, which was obtained by the Assessee.20. Though we have rendered this decision keeping in view the legal position discussed above, at the same time, we deem it necessary to observe that the Government should bestow its consideration and make appropriate provision dealing with such situations. After all, the Exemption Notification No. 30/1997 has been issued to implement and effect the EXIM Policy provisions. Therefore, the purport of the exemption notification is to advance the objectives of the EXIM Policy. When the DGFT has itself accepted the benefits of the Assessee and carried out the amendment in the import licence and further that the Assessee could make the exports on the basis of the amendment; albeit through third party, such person should not be left high and dry. Therefore, necessary amendments are needed in such notifications making appropriate provisions to meet these types of eventualities. We are hopeful that the competent authority shall look into these aspects and cater for such situations as well so that unnecessary hardship is not caused to the bona fide Assessees as well.
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IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC Vs.
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doses/month to 6.5 crore doses/month by July 2021; (b) BBIL: from 90 lakh doses/month to 2 crore doses/month, and further increase to 5.5 crore doses/month by July 2021; and (c) Sputnik V: from 30 lakh doses to 1.2 crore doses/month by July 2021; and (xiii) The regulatory and testing process for foreign vaccines has been simplified by the NEGVAC which now allows bridging trials (a nearly 4-month long process) of foreign vaccines to occur simultaneously with market development. 19. Based on the response of the UoI and the submissions made by the Amici, we understand that there are three broad issues that are of concern: (i) vaccine distribution between different age groups; (ii) vaccine procurement process; and (iii) the augmentation of the vaccine availability in India. 20. The affidavit of the UoI sufficiently clarifies the prioritization of the groups in phases 1 and 2 for obtaining the COVID-19 vaccines. These include HCWs, FLWs and persons above the age of 45 years. The prioritization of these groups was based on the experience of India and other countries during the first wave of the pandemic in 2020. It was largely observed that these groups faced a higher risk of infection and thus, it was necessary to inoculate them free of cost and on a priority basis by the Central Government. During the vaccination for these groups, the Central Government had allowed on-site registration and there was no prior requirement for booking an appointment on CoWIN. Having said that, the vaccination policy has been substantially changed for persons between 18-44 years of age. The Liberalized Vaccination Policy requires some of these persons to pay for the vaccines; limited vaccines are made available for this category with the State/UT Governments/private hospitals and an additional requirement of mandatory digital registration and booking an appointment through CoWIN has been imposed, among others. Unlike the prior policy, the Liberalized Vaccination Policy does not prioritize persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups. This is especially at issue because the experience of the second wave of the pandemic has provided an experiential learning that the COVID-19 virus is capable of mutation and now poses a threat to persons in this age group as well. Reports indicate that persons between 18-44 years of age have not only been infected by COVID-19, but have also suffered from severe effects of the infection, including prolonged hospitalization and, in unfortunate cases, death. Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational. 21. With regard to the procurement process for vaccinations which is to be followed in view of the Liberalized Vaccination Policy, there are a number of issues that need to be addressed. The Amici have indicated that many State/UT Governments and local municipal bodies have issued tenders and attempted to negotiate with foreign manufacturers but they have largely been unsuccessful, as foreign manufacturers are not inclined to negotiate with individual State/UT Governments and prefer negotiating with federal governments of countries. Additionally, it has been urged that Central Government is also better placed to use its monopoly as a buyer (India being the second most populous country) to bargain for higher quantities of vaccines at reasonable prices. We find that the submissions urged by the Amici are extremely pertinent and have indicated that in practice, the Liberalized Vaccination Policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines. 22. Additionally, the Liberalized Vaccination Policy seeks to remove the issue of bargaining disparities by stating that each State/UT would have a prefixed pro rata quota based on their population in the 18-44 age group, 50% of which will be available to the State/UT Governments and 50% to the private hospitals. The Amici have raised concerns that there is a lack of clarity regarding whether the UoI will intervene in the distribution process. Given that inter-State barriers in India are porous and persons are free to migrate and work in different parts of the country, it is essential to understand if the pro rata allotment will take into account such migration to more densely populated industrial and urban States/UTs. Other concerns, such as the stage of the pandemic, the healthcare infrastructure and existing capacities of a State/UT, the literacy rate, age and overall health condition of its population, may also be relevant factors in making such a pro rata determination. The UoI should thus specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI. 23. We shall now address the issue related to augmentation of vaccine production/availability. We have noted the submissions of the UoI in its affidavit dated 9 May 2021, that it is difficult to predict the projections for vaccines given that it depends on variable factors such as introduction of new foreign vaccines, capability of increased production by existing manufacturers, among others. Mr Tushar Mehta has during the course of his oral submissions stated that he is in a position to address these concerns of this Court and that the UoI aims to vaccinate approximately 100 crore persons by the end of December 2021. Mr Mehta has agreed to provide a detailed roadmap regarding projected availability of vaccines from the various vaccine manufacturers. It has also been highlighted that the Central Government is in active negotiations with various private foreign manufacturers to augment the availability of vaccines in the near future.
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1[ds]9. Phase 1 of the National COVID-19 Vaccination Strategy was launched on 16 January 2021 and 1 February 2021 and was targeted towards protecting HCWs and FLWs. Phase 2 was initiated on 1 March 2021 and 1 April 2021, and was directed towards protecting the most vulnerable population in the age group of persons above 45 years of age. In phase 1 and 2, the UoI was procuring the vaccines and distributing them to the States/UTs free of cost for disbursal through government and private COVID-19 vaccination centres. The private facilities were not allowed to charge a sum above Rs 250 per person per dose (Rs 150 for vaccines and Rs 100 as operational charges) from a beneficiary.10. During phase 2, eligible beneficiaries could register and book appointments for vaccination on the CoWIN 2.0 portal or other IT applications such as Aarogya Setu. From 1 March 2021 onwards, the population aged 60 years or which would attain the age of 60 years or more as on 1 January 2022 was eligible to register on the CoWIN platform. Further, persons who were aged 45 years or would attain the age of 45 years to 59 years as on 1 January 2022 and had any of the 20 specified co-morbidities were also eligible to register on the CoWIN platform. From 1 April 2021 onwards, all persons who were aged 45 years or would attain the age of 45 years to 59 years as on 1 January 2022 were eligible to register on the CoWIN platform. On-site registration facility was also made available at vaccination centres in this phase.11. In phase 3, a Liberalized Vaccination Policy was introduced by the UoI, which came into effect on 1 May 2021.Based on such documents, the main elements of the Liberalized Vaccination Policy can be identified as:(i) Vaccine manufacturers are required to supply 50% of their monthly Central Drugs Laboratory(CDL) doses to the UoI and would be free to supply the remaining 50% doses to State/UT Governments and in other than Government of India channel(other than GoI channel);(ii) Manufacturers were required to make a declaration of the price of the 50% supply that would be available to State/UT Governments and in the other than GoI channel before 1 May 2021. Based on this price, States/UTs, private hospitals and industrial establishments through their hospitals may procure vaccines from the manufacturers. Private hospitals would be able to procure their supplies only from the 50% supply earmarked for other than GoI channel;(iii) The prices charged for vaccination by private hospitals would be monitored. As a result, the earlier dispensation where private COVID-19 vaccination centres which received doses from the UoI could charge up to Rs 250 per dose ceased to exist;(iv) The population which is now eligible to obtain vaccines at UoIs vaccination centres is limited to HCWs, FLWs and those above 45 years of age. The population between 18-44 years is eligible to obtain vaccines from other than GoI channel;(v) The vaccination would continue to be available for free for eligible population groups in those vaccination centres which receive their vaccine doses from UoI;(vi) The vaccination would continue to be a part of the National Vaccination Programme and would follow all existing guidelines. The CoWIN platform would capture the vaccination, stocks and price per vaccination applicable in all vaccination centres. The vaccination drive would comply with Adverse Event Following Immunization management and reporting, digital vaccination certificate and all other prescribed norms;(vii) The division of 50% supply to UoI and 50% to other than GoI channel would be applicable uniformly across all the vaccine manufactures in the country;(viii) The fully ready to use imported vaccines are allowed to be utilized entirely in the other than GoI channel; and(ix) The UoI from its share will allocate vaccines to States/UTs based on criteria of performance (speed of administration, average consumption) and extent of infection (number of COVID-19 cases). Wastage of vaccines would also be considered in the criteria and would affect the allocation negatively. Based on the above criteria, a State-wise quota would be decided and communicated to the States/UTs in advance.12. The facility of only online appointment on the CoWIN portal was initially introduced for the entirety of the population between the ages of 18-44 years. Later, on 24 May 2021(Available at <https://www.pib.gov.in/PressReleasePage.aspx?PRID=1721225>), the UoI announced that on-site registration will be made available for the 18-44 years age group. However, this is contingent on: (i) the State/UT Government enabling this policy; and (ii) only in cases of wastage at a particular government COVID-19 vaccination centre due to a no-show by an online appointee. Further, this facility has not been expanded to private COVID-19 vaccination centres.16. Similarly, courts across the globe have responded to constitutional challenges to executive policies that have directly or indirectly violated rights and liberties of citizens. Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the wide latitude to the executive that is necessitated to battle a pandemic. This Court in Gujarat Mazdoor Sabha vs. State of Gujarat, AIR 2020 SC 4601 , para 9 albeit while speaking in the context of labour rights, had noted that policies to counteract a pandemic must continue to be evaluated from a threshold of proportionality to determine if they, inter alia, have a rational connection with the object that is sought to be achieved and are necessary to achieve them.17. In grappling with the second wave of the pandemic, this Court does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons. This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.20. The affidavit of the UoI sufficiently clarifies the prioritization of the groups in phases 1 and 2 for obtaining the COVID-19 vaccines. These include HCWs, FLWs and persons above the age of 45 years. The prioritization of these groups was based on the experience of India and other countries during the first wave of the pandemic in 2020. It was largely observed that these groups faced a higher risk of infection and thus, it was necessary to inoculate them free of cost and on a priority basis by the Central Government. During the vaccination for these groups, the Central Government had allowed on-site registration and there was no prior requirement for booking an appointment on CoWIN. Having said that, the vaccination policy has been substantially changed for persons between 18-44 years of age. The Liberalized Vaccination Policy requires some of these persons to pay for the vaccines; limited vaccines are made available for this category with the State/UT Governments/private hospitals and an additional requirement of mandatory digital registration and booking an appointment through CoWIN has been imposed, among others. Unlike the prior policy, the Liberalized Vaccination Policy does not prioritize persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups. This is especially at issue because the experience of the second wave of the pandemic has provided an experiential learning that the COVID-19 virus is capable of mutation and now poses a threat to persons in this age group as well. Reports indicate that persons between 18-44 years of age have not only been infected by COVID-19, but have also suffered from severe effects of the infection, including prolonged hospitalization and, in unfortunate cases, death. Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational.21. With regard to the procurement process for vaccinations which is to be followed in view of the Liberalized Vaccination Policy, there are a number of issues that need to be addressed.The Amici have indicated that many State/UT Governments and local municipal bodies have issued tenders and attempted to negotiate with foreign manufacturers but they have largely been unsuccessful, as foreign manufacturers are not inclined to negotiate with individual State/UT Governments and prefer negotiating with federal governments of countries. Additionally, it has been urged that Central Government is also better placed to use its monopoly as a buyer (India being the second most populous country) to bargain for higher quantities of vaccines at reasonable prices.We find that the submissions urged by the Amici are extremely pertinent and have indicated that in practice, the Liberalized Vaccination Policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines.22. Additionally, the Liberalized Vaccination Policy seeks to remove the issue of bargaining disparities by stating that each State/UT would have a prefixed pro rata quota based on their population in the 18-44 age group, 50% of which will be available to the State/UT Governments and 50% to the private hospitals.The Amici have raised concerns that there is a lack of clarity regarding whether the UoI will intervene in the distribution process. Given that inter-State barriers in India are porous and persons are free to migrate and work in different parts of the country, it is essential to understand if the pro rata allotment will take into account such migration to more densely populated industrial and urban States/UTs. Other concerns, such as the stage of the pandemic, the healthcare infrastructure and existing capacities of a State/UT, the literacy rate, age and overall health condition of its population, may also be relevant factors in making such a pro rata determination. The UoI should thus specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI.23. We shall now address the issue related to augmentation of vaccine production/availability. We have noted the submissions of the UoI in its affidavit dated 9 May 2021, that it is difficult to predict the projections for vaccines given that it depends on variable factors such as introduction of new foreign vaccines, capability of increased production by existing manufacturers, among others.25. Under the Liberalized Vaccination Policy covering persons in the age group of 18-44 years, the total vaccines produced will be divided in a ratio of 50:25:25 between the Central Government, State/UT Governments and private hospitals. In its affidavit dated 9 May 2021, the UoI notes the following salient features of this Liberalized Vaccination Policy, in relation to vaccination by private hospitals:(i) Out of the 50% quota allocated for the other than GoI channel, 50% will go to the State/UT Governments, calculated on a pro rata basis as per the population. The balance 50% would be open for private hospitals procurement, based on contracts with the manufacturers. As such, the State/UT Governments and private hospitals would each end up with 25% of the total CDL doses;(ii) Vaccination through the private sector of 25% of the total CDL quantity would reduce the operational stress on government facilities and help with issues of crowding at vaccination centres; and(iii) Paid vaccination through private hospitals has been introduced for persons who can afford to pay, thereby reducing the operational stress on the Government. However, it has also been submitted that this policy may undergo a change based on performance and future availability of vaccines.26. As a consequence of this Liberalized Vaccination Policy, 50% of the population of any State/UT in the 18-44 age group is expected to pay for its vaccination. From the UoIs affidavit, we understand that this has been done while taking into account the ability of a certain section of the population to pay for their vaccination. However, the present system of allowing only digital registration and booking of appointment on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. As such, even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it.27. Further consequences of the vaccination by private hospitals under the Liberalized Vaccination Policy relate to a simple issue at the core of their existence: that while they provide a public health service, they still remain private, for-profit entities. Consequently, they may sell the vaccine doses procured at a higher price, unless regulated stringently. Private hospitals also may not sell all their vaccine doses publicly through appointments on CoWIN, but rather sell them for lucrative deals directly to private corporations who wish to vaccinate their employees. Finally, private hospitals are not equally spread out across a State/UT and are often limited to bigger cities with large populations. As such, a larger quantity will be available in such cities, as opposed to the rural areas.28. It is pertinent to clarify here that we are not opposed to the involvement of private hospitals in the vaccination drive. Private health care institutions have an important role as well. The UoI has correctly noted in its affidavit that these hospitals will reduce the burden on government facilities. This was also happening earlier for the vaccination of those above 45 years of age, where the Central Government was providing these hospitals with vaccines and they were allowed to charge patients a nominal fee (Rs 250). However, the issue is about the effect of privatizing 50% of all vaccines available for the 18-44 age group.29. In our order dated 30 April 2021, we had elicited the UoIs justification for enabling decentralized procurement where a pre-fixed and differential price was set for the Central Government, States/UTs and private hospitals. The UoI through its affidavit dated 9 May 2021, has submitted the following:(i) The Liberalized Vaccination Policy was introduced to incentivize existing manufacturers and invite more manufacturers, which will ensure fastest vaccination of the majority of the population. Differential pricing has been introduced in order to instill a competitive market which would drive the market towards affordability and attract offshore vaccine manufacturers;(ii) Vaccine manufacturers are mandated to transparently declare the price in advance for procurement by State/UT Governments and private hospitals. The price for the Central Government is pre-fixed and declared;(iii) Extensive consultations with the manufacturers were held to ensure that pricing is uniform and reasonable. The UoI stated that these were due to consultations and persuasion by the Central Government;(iv) On the differential pricing of the vaccines, it is stated that the Central Government by nature of its large vaccination programme, places large purchase orders for vaccines as opposed to the State Governments and/or Private Hospitals and therefore, this reality has some reflection in the prices negotiated; and(v) In any event, all persons of all age groups will get free vaccination throughout the country since all State/UT Governments have announced free vaccination for persons aged 18-44 years, in addition to the Central Government vaccinating persons over 45 years for free.30. The current Liberalized Vaccination Policy enables State/UT Governments and private hospitals to procure 50% of the monthly CDL approved doses in the country at a pre-fixed price. The justification for this Policy has been adduced in a bid to spur competition which would attract more private manufacturers that could eventually drive down prices. Prima facie, the only room for negotiation with the two vaccine manufacturers was on price and quantity, both of which have been pre-fixed by the Central Government. This casts serious doubts on UoIs justification for enabling higher prices as a competitive measure. Furthermore, the Central Government justifying its lower prices on account of its ability to place large purchase orders for vaccines, raises the issue as to why this rationale is not being employed for acquiring 100% of the monthly CDL doses. The Union Budget for Financial Year 2021-2022 had earmarked Rs 35000 crores for procuring vaccines(Available at <https://www.indiabudget.gov.in/doc/Budget_Speech.pdf>, page 7). In light of the Liberalized Vaccination Policy, the Central Government is directed to clarify how these funds have been spent so far and why they cannot be utilized for vaccinating persons aged 18-44 years.31. In response to our questions on the poor and marginalized suffering on account of the vaccine prices, the Central Government in its affidavit stated that the eventual beneficiary of the vaccine would not be affected by the Liberalized Vaccination Policy since every State/UT has promised to vaccinate its residents free of cost. Nevertheless, it is reiterated that the UoI should consider utilizing its position as the monopolistic buyer in the market and pass down the benefit to all persons. Even if the States/UTs were to fund the higher-priced vaccines, a burden they were not discharging before the Liberalized Vaccination Policy was introduced and potentially may not have planned in advance for, these funds are expended at the behest of the public exchequer. The Centre and States/UTs, both operate in the service of the Indian population, and raise and disburse funds in their name. The additional funds expended on procuring vaccines against a deadly pandemic are necessary expenditure for any State/UT Government which has battled the public health emergency for over 15 months now. However, an avoidable expense would eventually hurt the welfare of individuals residing within those States/UTs, who may potentially be benefitted by the differential funds being utilized for ramping up the health infrastructure in the State/UT, which is equally important to combat the pandemic. If the Central Governments unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.32. In our order dated 30 April 2021, we had requested for data on government funding and support, direct or indirect, into the two vaccines that are currently authorized for public use - SIIs Covishield and BBILs Covaxin. Additionally, in order to evaluate the bottlenecks in vaccine scarcity, we had sought the UoIs stance on invoking its powers of compulsory licensing under the Patents Act, 1970 in order to ramp up manufacturing and other statutory provisions to drive down costs. The UoI has adduced the following justifications in its affidavit dated 9 May 2021:(i) SII and BBIL have taken a financial risk in developing and manufacturing these vaccines and prudence dictates pricing through a transparent and consultative negotiation, and statutory provisions must be invoked in the last resort;(ii) Covaxin is developed under a public-private partnership through a formal MoU between Indian Council of Medical Research(ICMR) and BBIL. ICMR would receive a 5% royalty on net sales, the intellectual property is shared between ICMR and BBIL and clauses such as prioritization of in-country supplies have been included. Phase 3 trials of Covaxin have been funded by the ICMR to the tune of Rs 35 crores;(iii) Covishield is manufactured by SII. The Central Government has directly transferred Rs 11 crores to 14 clinical trials sites for conducting phase 3 trials of over 1600 participants; and(iv) Covaxin production is being augmented with government support to the tune of Rs 200 crores to one private manufacturer and 3 public sector manufacturing facilities - Bharat Biotech, Hyderabad; Indian Immunologicals, Hyderabad; Haffkine Biopharmaceuticals, Mumbai; and Bharat Immunologicals and Biologicals, Bulandshar. This is projected to enhance Covaxins current manufacturing of 1 crore doses/month to nearly 10 crore doses/month in the next 8-10 months. Grant-in-aids have been recommended, but the disbursements are yet to be made.34. We have already noted that as a consequence of the Liberalized Vaccination Policy, the responsibility for the vaccination in phase 3 is being divided between the Central Government (for those above 45 years of age, HCWs and FLWs) and the State/UT Government along with the private hospitals (for the age group of 18-44 years). This would mean that the limited vaccine logistics available in a State/UT would have to be shared between the State/UT Government and the Central Government. This is different from the situation under the UIP, where the Central Government buys and allocates vaccines to States/UTs, in order to ensure that their cold storage facilities are not overwhelmed.35. In our order dated 30 April 2021, we had highlighted the concerns relating to the ability of the marginalized members of society to avail of vaccination, exclusively through a digital portal in the face of a digital divide. The UoIs affidavit made the following submissions in relation to the accessibility of the CoWIN portal:(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;(ii) All gram panchayats in the country have Common Service Centres(CSC) which can effectively enable people residing in rural areas to register online for the vaccination;(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and(vi) It is clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.36. A survey on Household Social Consumption: Education was conducted by National Statistics Office (July 2017-June 2018)(Available at <http://mospi.nic.in/sites/default/files/publication_reports/Report_585_75th_round_Education_final_1507_0.pdf>) which revealed the following:(i) Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and(ii) Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.37. The Telecom Regulatory Authority of India in its report titled Wireless Data Services in India(Available at <https://www.trai.gov.in/sites/default/files/Wireless_Data_Service_Report_21082019_0.pdf>) noted that:(i) Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that:[this] reflects the rural-urban divide in terms of telecom services penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower.(ii) The report also noted that in a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and(iii) The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the months income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.38. According to the Annual Report of CSC for 2019-20, published by the Ministry of Electronics and Information Technology, while there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered CSC(Available at <https://csc.gov.in/assets/events-report/Annual-Report-2019-20.pdf>, at page 8). Hence, approximately 13,000 Gram Panchayats in India do not have a CSC.39. It is clear from the above statistics that there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.40. It has been brought to our notice that the CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers which should be addressed. These include:(i) Audio or text captcha is not available;(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;(iv) Keyboard support for navigating the website is absent;(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to.
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### 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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doses/month to 6.5 crore doses/month by July 2021; (b) BBIL: from 90 lakh doses/month to 2 crore doses/month, and further increase to 5.5 crore doses/month by July 2021; and (c) Sputnik V: from 30 lakh doses to 1.2 crore doses/month by July 2021; and (xiii) The regulatory and testing process for foreign vaccines has been simplified by the NEGVAC which now allows bridging trials (a nearly 4-month long process) of foreign vaccines to occur simultaneously with market development. 19. Based on the response of the UoI and the submissions made by the Amici, we understand that there are three broad issues that are of concern: (i) vaccine distribution between different age groups; (ii) vaccine procurement process; and (iii) the augmentation of the vaccine availability in India. 20. The affidavit of the UoI sufficiently clarifies the prioritization of the groups in phases 1 and 2 for obtaining the COVID-19 vaccines. These include HCWs, FLWs and persons above the age of 45 years. The prioritization of these groups was based on the experience of India and other countries during the first wave of the pandemic in 2020. It was largely observed that these groups faced a higher risk of infection and thus, it was necessary to inoculate them free of cost and on a priority basis by the Central Government. During the vaccination for these groups, the Central Government had allowed on-site registration and there was no prior requirement for booking an appointment on CoWIN. Having said that, the vaccination policy has been substantially changed for persons between 18-44 years of age. The Liberalized Vaccination Policy requires some of these persons to pay for the vaccines; limited vaccines are made available for this category with the State/UT Governments/private hospitals and an additional requirement of mandatory digital registration and booking an appointment through CoWIN has been imposed, among others. Unlike the prior policy, the Liberalized Vaccination Policy does not prioritize persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups. This is especially at issue because the experience of the second wave of the pandemic has provided an experiential learning that the COVID-19 virus is capable of mutation and now poses a threat to persons in this age group as well. Reports indicate that persons between 18-44 years of age have not only been infected by COVID-19, but have also suffered from severe effects of the infection, including prolonged hospitalization and, in unfortunate cases, death. Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational. 21. With regard to the procurement process for vaccinations which is to be followed in view of the Liberalized Vaccination Policy, there are a number of issues that need to be addressed. The Amici have indicated that many State/UT Governments and local municipal bodies have issued tenders and attempted to negotiate with foreign manufacturers but they have largely been unsuccessful, as foreign manufacturers are not inclined to negotiate with individual State/UT Governments and prefer negotiating with federal governments of countries. Additionally, it has been urged that Central Government is also better placed to use its monopoly as a buyer (India being the second most populous country) to bargain for higher quantities of vaccines at reasonable prices. We find that the submissions urged by the Amici are extremely pertinent and have indicated that in practice, the Liberalized Vaccination Policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines. 22. Additionally, the Liberalized Vaccination Policy seeks to remove the issue of bargaining disparities by stating that each State/UT would have a prefixed pro rata quota based on their population in the 18-44 age group, 50% of which will be available to the State/UT Governments and 50% to the private hospitals. The Amici have raised concerns that there is a lack of clarity regarding whether the UoI will intervene in the distribution process. Given that inter-State barriers in India are porous and persons are free to migrate and work in different parts of the country, it is essential to understand if the pro rata allotment will take into account such migration to more densely populated industrial and urban States/UTs. Other concerns, such as the stage of the pandemic, the healthcare infrastructure and existing capacities of a State/UT, the literacy rate, age and overall health condition of its population, may also be relevant factors in making such a pro rata determination. The UoI should thus specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI. 23. We shall now address the issue related to augmentation of vaccine production/availability. We have noted the submissions of the UoI in its affidavit dated 9 May 2021, that it is difficult to predict the projections for vaccines given that it depends on variable factors such as introduction of new foreign vaccines, capability of increased production by existing manufacturers, among others. Mr Tushar Mehta has during the course of his oral submissions stated that he is in a position to address these concerns of this Court and that the UoI aims to vaccinate approximately 100 crore persons by the end of December 2021. Mr Mehta has agreed to provide a detailed roadmap regarding projected availability of vaccines from the various vaccine manufacturers. It has also been highlighted that the Central Government is in active negotiations with various private foreign manufacturers to augment the availability of vaccines in the near future.
### Response:
1
### Explanation:
the State/UT Government and the Central Government. This is different from the situation under the UIP, where the Central Government buys and allocates vaccines to States/UTs, in order to ensure that their cold storage facilities are not overwhelmed.35. In our order dated 30 April 2021, we had highlighted the concerns relating to the ability of the marginalized members of society to avail of vaccination, exclusively through a digital portal in the face of a digital divide. The UoIs affidavit made the following submissions in relation to the accessibility of the CoWIN portal:(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;(ii) All gram panchayats in the country have Common Service Centres(CSC) which can effectively enable people residing in rural areas to register online for the vaccination;(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and(vi) It is clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.36. A survey on Household Social Consumption: Education was conducted by National Statistics Office (July 2017-June 2018)(Available at <http://mospi.nic.in/sites/default/files/publication_reports/Report_585_75th_round_Education_final_1507_0.pdf>) which revealed the following:(i) Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and(ii) Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.37. The Telecom Regulatory Authority of India in its report titled Wireless Data Services in India(Available at <https://www.trai.gov.in/sites/default/files/Wireless_Data_Service_Report_21082019_0.pdf>) noted that:(i) Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that:[this] reflects the rural-urban divide in terms of telecom services penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower.(ii) The report also noted that in a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and(iii) The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the months income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.38. According to the Annual Report of CSC for 2019-20, published by the Ministry of Electronics and Information Technology, while there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered CSC(Available at <https://csc.gov.in/assets/events-report/Annual-Report-2019-20.pdf>, at page 8). Hence, approximately 13,000 Gram Panchayats in India do not have a CSC.39. It is clear from the above statistics that there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.40. It has been brought to our notice that the CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers which should be addressed. These include:(i) Audio or text captcha is not available;(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;(iv) Keyboard support for navigating the website is absent;(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to.
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Workmen of Hindusthan Motors Vs. Hindusthan Motors and Another
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it is not said that any difficulty has been experienced by the concerns covered by the award in working the scheme given in the award. We cannot see therefore why the respondent concern should have any difficulty in applying this very scheme.6. On behalf of the respondents it is argued that in fact the grades and scales awarded by the present tribunal are more favourable to the workmen. It might be that for some workmen who are very highly skilled the present scheme may result in better earnings. By and large, however, the grades and scales of pay introduced by the present award is much less favourable to the workmen. For such different treatment for the workmen of this particular engineering concern while workmen of the large number of engineering concerns were covered be the Third Major Engineering Tribunal award all working in the same region - in the neighbourhood of Calcutta and Howrah - we cannot find any justification. There can be no dispute that it is ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region. It may not aways be possible to attain this object because of the different financial capacities of different concerns. Where however no such obstacle is present, industrial adjudication always tries to secure the same wage-rates for the different concerns in the same industry in the same region. On the one hand this tends to the maintenance of industrial peace in the entire region and on the other it puts the different companies of the industry on more or less equal footing in their production struggle. The financial condition of the respondent company is quite satisfactory and nothing has been said before us to justify even remotely a conclusion that this company - as compared to numerous other companies - large and small - which were covered by the award of the Third Major Engineering Tribunal - is unable to pay what those other concerns have to pay to their workmen. But, then, says learned advocate for the respondents, the classification of workmen in the groups as provided in the Third Major Engineering Tribunal award would itself cause discontent among its workmen. Learned counsel argues that there may be a turner who is earning Rs. 3 per day; and another who is earning Rs. 5 per day. One who is earning Rs. 5 would go into group A of the scheme while the one who is drawing Rs. 3 will go into group B. The workman who goes into group B will claim that as he is also a turner and as much a skilled workman as the other turner, he should also be put into group A. If this is not done, there will be discontent. Similar difficulty, it is suggested, will rise in the other categories of workmen. We do not think there is much scope for any such controversies as apprehended by the learned counsel. Just as at present the turner having greater skill and experience receives pay at a higher rate and that does not create any discontent in another turner who because of his comparatively lower skill and experience gets Rs. 3 per day, so also it is reasonable to think that the turner who is put in group B in view of his present scale of pay will not grumble the placing of another turner with a higher rate of pay in the next group. It may be that in individual cases some friction may result in the working of this grouping scheme. It is reasonable to think, however, that when all the workmen together want this grouping as in their best interests the risk to industrial peace by this grouping will be very little.We are not satisfied that the respondent concern will have any difficulty in applying the wage scheme as provided by the Third Major Engineering Tribunal and think it reasonable that this should be made applicable to the respondent concern also.7. On the question of dearness allowance the appellants grievance is that while accepting the rate for dearness allowance fixed by the Third Major Engineering Tribunal the present tribunal omitted to provide a sliding scale for such allowance. The direction of the Third Major Engineering Tribunal on this point was that the dearness allowance will be liable to be increased or decreased on the basis of Re. 1 for every five points in case of rise and fail of the cost of living index (from 364); the position will be reviewed at the end of each financial year. The whole purpose of dearness allowance being to neutralize a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. No reason has been given in the present award why this ordinary practice has not been followed. We think therefore that in the matter of dearness allowance also the award of the Third Major Engineering Tribunal should be applied to these workmen not only as regards the rates but also as regards the sliding scales.On the question of production bonus the appellants wanted to contend that there is no reason for not applying this scheme for not applying this scheme for giving production bonus to the workmen in the plant engineering, master mechanic and inspection and supply and stores departments. Mr. Chari, however, concedes that no materials were placed before the tribunal to enable it to devise any scheme for production bonus. It does not even appear that any demand was made in the written statement for production bonus being extended to departments where it was not in force. As no case for extension of the incentive scheme to other departments was made at all in the written statement, it is not possible to give the appellants any relief in this matter.
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1[ds]On turning to that award we find that there also an argument was advanced on behalf of the engineering concerns that classification of workmen with reference to skill could not be conveniently made without the aid of technical expert bodies and that the tribunal should not embark upon the task of dividing the workmen in different groups. The Third Engineering Tribunal appreciated the force of the contention made on behalf of the companies about the difficulty of scientific classification of workmen but decided, in our opinion, rightly that that would be no reason to avoid the task altogether and adopted a classification of the workmen into four groups, A, B, C and D, and fixed the pay scales and grades of theseThis award of the Third Major Engineering Tribunal was made on 27 June, 1959 and it is not said that any difficulty has been experienced by the concerns covered by the award in working the scheme given in the award. We cannot see therefore why the respondent concern should have any difficulty in applying this verycan be no dispute that it is ordinarily desirable to have as much uniformity as possible in theof different concerns of the same industry working in the same region. It may not aways be possible to attain this object because of the different financial capacities of different concerns. Where however no such obstacle is present, industrial adjudication always tries to secure the samefor the different concerns in the same industry in the same region. On the one hand this tends to the maintenance of industrial peace in the entire region and on the other it puts the different companies of the industry on more or less equal footing in their production struggle. The financial condition of the respondent company is quite satisfactory and nothing has been said before us to justify even remotely a conclusion that this companyas compared to numerous other companieslarge and smallwhich were covered by the award of the Third Major Engineering Tribunalis unable to pay what those other concerns have to pay to theirdo not think there is much scope for any such controversies as apprehended by the learned counsel. Just as at present the turner having greater skill and experience receives pay at a higher rate and that does not create any discontent in another turner who because of his comparatively lower skill and experience gets Rs. 3 per day, so also it is reasonable to think that the turner who is put in group B in view of his present scale of pay will not grumble the placing of another turner with a higher rate of pay in the next group. It may be that in individual cases some friction may result in the working of this grouping scheme. It is reasonable to think, however, that when all the workmen together want this grouping as in their best interests the risk to industrial peace by this grouping will be very little.We are not satisfied that the respondent concern will have any difficulty in applying the wage scheme as provided by the Third Major Engineering Tribunal and think it reasonable that this should be made applicable to the respondent concern also.On the question of dearness allowance the appellants grievance is that while accepting the rate for dearness allowance fixed by the Third Major Engineering Tribunal the present tribunal omitted to provide a sliding scale for such allowance.The direction of the Third Major Engineering Tribunal on this point was that the dearness allowance will be liable to be increased or decreased on the basis of Re. 1 for every five points in case of rise and fail of the cost of living index (from 364); the position will be reviewed at the end of each financial year. The whole purpose of dearness allowance being to neutralize a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. No reason has been given in the present award why this ordinary practice has not been followed. We think therefore that in the matter of dearness allowance also the award of the Third Major Engineering Tribunal should be applied to these workmen not only as regards the rates but also as regards the slidingdoes not even appear that any demand was made in the written statement for production bonus being extended to departments where it was not in force.As no case for extension of the incentive scheme to other departments was made at all in the written statement, it is not possible to give the appellants any relief in this matter.
| 1 | 2,722 | 824 |
### 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:
it is not said that any difficulty has been experienced by the concerns covered by the award in working the scheme given in the award. We cannot see therefore why the respondent concern should have any difficulty in applying this very scheme.6. On behalf of the respondents it is argued that in fact the grades and scales awarded by the present tribunal are more favourable to the workmen. It might be that for some workmen who are very highly skilled the present scheme may result in better earnings. By and large, however, the grades and scales of pay introduced by the present award is much less favourable to the workmen. For such different treatment for the workmen of this particular engineering concern while workmen of the large number of engineering concerns were covered be the Third Major Engineering Tribunal award all working in the same region - in the neighbourhood of Calcutta and Howrah - we cannot find any justification. There can be no dispute that it is ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region. It may not aways be possible to attain this object because of the different financial capacities of different concerns. Where however no such obstacle is present, industrial adjudication always tries to secure the same wage-rates for the different concerns in the same industry in the same region. On the one hand this tends to the maintenance of industrial peace in the entire region and on the other it puts the different companies of the industry on more or less equal footing in their production struggle. The financial condition of the respondent company is quite satisfactory and nothing has been said before us to justify even remotely a conclusion that this company - as compared to numerous other companies - large and small - which were covered by the award of the Third Major Engineering Tribunal - is unable to pay what those other concerns have to pay to their workmen. But, then, says learned advocate for the respondents, the classification of workmen in the groups as provided in the Third Major Engineering Tribunal award would itself cause discontent among its workmen. Learned counsel argues that there may be a turner who is earning Rs. 3 per day; and another who is earning Rs. 5 per day. One who is earning Rs. 5 would go into group A of the scheme while the one who is drawing Rs. 3 will go into group B. The workman who goes into group B will claim that as he is also a turner and as much a skilled workman as the other turner, he should also be put into group A. If this is not done, there will be discontent. Similar difficulty, it is suggested, will rise in the other categories of workmen. We do not think there is much scope for any such controversies as apprehended by the learned counsel. Just as at present the turner having greater skill and experience receives pay at a higher rate and that does not create any discontent in another turner who because of his comparatively lower skill and experience gets Rs. 3 per day, so also it is reasonable to think that the turner who is put in group B in view of his present scale of pay will not grumble the placing of another turner with a higher rate of pay in the next group. It may be that in individual cases some friction may result in the working of this grouping scheme. It is reasonable to think, however, that when all the workmen together want this grouping as in their best interests the risk to industrial peace by this grouping will be very little.We are not satisfied that the respondent concern will have any difficulty in applying the wage scheme as provided by the Third Major Engineering Tribunal and think it reasonable that this should be made applicable to the respondent concern also.7. On the question of dearness allowance the appellants grievance is that while accepting the rate for dearness allowance fixed by the Third Major Engineering Tribunal the present tribunal omitted to provide a sliding scale for such allowance. The direction of the Third Major Engineering Tribunal on this point was that the dearness allowance will be liable to be increased or decreased on the basis of Re. 1 for every five points in case of rise and fail of the cost of living index (from 364); the position will be reviewed at the end of each financial year. The whole purpose of dearness allowance being to neutralize a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. No reason has been given in the present award why this ordinary practice has not been followed. We think therefore that in the matter of dearness allowance also the award of the Third Major Engineering Tribunal should be applied to these workmen not only as regards the rates but also as regards the sliding scales.On the question of production bonus the appellants wanted to contend that there is no reason for not applying this scheme for not applying this scheme for giving production bonus to the workmen in the plant engineering, master mechanic and inspection and supply and stores departments. Mr. Chari, however, concedes that no materials were placed before the tribunal to enable it to devise any scheme for production bonus. It does not even appear that any demand was made in the written statement for production bonus being extended to departments where it was not in force. As no case for extension of the incentive scheme to other departments was made at all in the written statement, it is not possible to give the appellants any relief in this matter.
### Response:
1
### Explanation:
On turning to that award we find that there also an argument was advanced on behalf of the engineering concerns that classification of workmen with reference to skill could not be conveniently made without the aid of technical expert bodies and that the tribunal should not embark upon the task of dividing the workmen in different groups. The Third Engineering Tribunal appreciated the force of the contention made on behalf of the companies about the difficulty of scientific classification of workmen but decided, in our opinion, rightly that that would be no reason to avoid the task altogether and adopted a classification of the workmen into four groups, A, B, C and D, and fixed the pay scales and grades of theseThis award of the Third Major Engineering Tribunal was made on 27 June, 1959 and it is not said that any difficulty has been experienced by the concerns covered by the award in working the scheme given in the award. We cannot see therefore why the respondent concern should have any difficulty in applying this verycan be no dispute that it is ordinarily desirable to have as much uniformity as possible in theof different concerns of the same industry working in the same region. It may not aways be possible to attain this object because of the different financial capacities of different concerns. Where however no such obstacle is present, industrial adjudication always tries to secure the samefor the different concerns in the same industry in the same region. On the one hand this tends to the maintenance of industrial peace in the entire region and on the other it puts the different companies of the industry on more or less equal footing in their production struggle. The financial condition of the respondent company is quite satisfactory and nothing has been said before us to justify even remotely a conclusion that this companyas compared to numerous other companieslarge and smallwhich were covered by the award of the Third Major Engineering Tribunalis unable to pay what those other concerns have to pay to theirdo not think there is much scope for any such controversies as apprehended by the learned counsel. Just as at present the turner having greater skill and experience receives pay at a higher rate and that does not create any discontent in another turner who because of his comparatively lower skill and experience gets Rs. 3 per day, so also it is reasonable to think that the turner who is put in group B in view of his present scale of pay will not grumble the placing of another turner with a higher rate of pay in the next group. It may be that in individual cases some friction may result in the working of this grouping scheme. It is reasonable to think, however, that when all the workmen together want this grouping as in their best interests the risk to industrial peace by this grouping will be very little.We are not satisfied that the respondent concern will have any difficulty in applying the wage scheme as provided by the Third Major Engineering Tribunal and think it reasonable that this should be made applicable to the respondent concern also.On the question of dearness allowance the appellants grievance is that while accepting the rate for dearness allowance fixed by the Third Major Engineering Tribunal the present tribunal omitted to provide a sliding scale for such allowance.The direction of the Third Major Engineering Tribunal on this point was that the dearness allowance will be liable to be increased or decreased on the basis of Re. 1 for every five points in case of rise and fail of the cost of living index (from 364); the position will be reviewed at the end of each financial year. The whole purpose of dearness allowance being to neutralize a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. No reason has been given in the present award why this ordinary practice has not been followed. We think therefore that in the matter of dearness allowance also the award of the Third Major Engineering Tribunal should be applied to these workmen not only as regards the rates but also as regards the slidingdoes not even appear that any demand was made in the written statement for production bonus being extended to departments where it was not in force.As no case for extension of the incentive scheme to other departments was made at all in the written statement, it is not possible to give the appellants any relief in this matter.
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RAHUL JAIN Vs. RAVE SCANS PVT. LTD
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counsel for the second respondent-Hero, urged that this court should not interfere with the impugned order. He relied on the observations in Swiss Ribbons and Section 30 of the IBC, to say that creditors falling within one description or class cannot be discriminated against. It was pointed out that the PSU banks dues were given primacy, inasmuch as all of them were given a settlement of 45% of their admitted claims; however, the dissenting Financial Creditor (Hero) was provided with 32.34% of its admitted claim which is plainly discriminatory and contrary to the letter and spirit of the IBC. 9. Mr. Sibal relied on the observations of this court in Swiss Ribbons (supra) that: 72. The aforesaid Regulation further strengthens the rights of operational creditors by statutorily incorporating the principle of fair and equitable dealing of operational creditors rights, together with priority in payment over financial creditors. 10. Section 30, which is relied upon by the respondents, and which was interpreted by the NCLAT, reads as follows: 30. (1) A resolution applicant may submit a resolution plan to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan— (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor; (b) provides for the repayment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub- section (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than seventy-five per cent. of voting share of the financial creditors. (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. 11. Section 30 lays out the duties of the resolution professional and the various steps that she or he has to take, as well as the considerations that are to weigh, in examining a resolution plan. The principle of fairness engrafted in the provision is that the plan should make a provision for repayment of debts of operational creditors having regard to the value, which shall not be less than what is prescribed by the Board (i.e. the Insolvency Board), repayable in the event of liquidation, spelt out in Section 53. Section 30(3) requires the resolution professional to present the resolution plan to the committee of creditors and Section 30(4) stipulates that approval shall be by a vote not less than 75% of the voting share of the financial creditors. Regulation 38, as it stood before the amendment and its substitution, read as follows: 38. Mandatory contents of the resolution plan.— (1) A resolution plan shall identify specific sources of funds that will be used to pay the- (a) insolvency resolution process costs and provide that the [insolvency resolution process costs, to the extent unpaid, will be paid] in priority to any other creditor; (b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and (c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. 12. After its amendment, Regulation 38 now reads as follows: 38. Mandatory contents of the resolution plan.— (1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. (1-A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor. 13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
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1[ds]13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
| 1 | 2,598 | 234 |
### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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counsel for the second respondent-Hero, urged that this court should not interfere with the impugned order. He relied on the observations in Swiss Ribbons and Section 30 of the IBC, to say that creditors falling within one description or class cannot be discriminated against. It was pointed out that the PSU banks dues were given primacy, inasmuch as all of them were given a settlement of 45% of their admitted claims; however, the dissenting Financial Creditor (Hero) was provided with 32.34% of its admitted claim which is plainly discriminatory and contrary to the letter and spirit of the IBC. 9. Mr. Sibal relied on the observations of this court in Swiss Ribbons (supra) that: 72. The aforesaid Regulation further strengthens the rights of operational creditors by statutorily incorporating the principle of fair and equitable dealing of operational creditors rights, together with priority in payment over financial creditors. 10. Section 30, which is relied upon by the respondents, and which was interpreted by the NCLAT, reads as follows: 30. (1) A resolution applicant may submit a resolution plan to the resolution professional prepared on the basis of the information memorandum. (2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan— (a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the repayment of other debts of the corporate debtor; (b) provides for the repayment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub- section (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than seventy-five per cent. of voting share of the financial creditors. (5) The resolution applicant may attend the meeting of the committee of creditors in which the resolution plan of the applicant is considered: Provided that the resolution applicant shall not have a right to vote at the meeting of the committee of creditors unless such resolution applicant is also a financial creditor. (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. 11. Section 30 lays out the duties of the resolution professional and the various steps that she or he has to take, as well as the considerations that are to weigh, in examining a resolution plan. The principle of fairness engrafted in the provision is that the plan should make a provision for repayment of debts of operational creditors having regard to the value, which shall not be less than what is prescribed by the Board (i.e. the Insolvency Board), repayable in the event of liquidation, spelt out in Section 53. Section 30(3) requires the resolution professional to present the resolution plan to the committee of creditors and Section 30(4) stipulates that approval shall be by a vote not less than 75% of the voting share of the financial creditors. Regulation 38, as it stood before the amendment and its substitution, read as follows: 38. Mandatory contents of the resolution plan.— (1) A resolution plan shall identify specific sources of funds that will be used to pay the- (a) insolvency resolution process costs and provide that the [insolvency resolution process costs, to the extent unpaid, will be paid] in priority to any other creditor; (b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and (c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the financial creditors who voted in favour of the resolution plan. 12. After its amendment, Regulation 38 now reads as follows: 38. Mandatory contents of the resolution plan.— (1) The amount due to the operational creditors under a resolution plan shall be given priority in payment over financial creditors. (1-A) A resolution plan shall include a statement as to how it has dealt with the interests of all stakeholders, including financial creditors and operational creditors, of the corporate debtor. 13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
### Response:
1
### Explanation:
13. In the present case, it is noticeable that no doubt, Hero was provided with 32.34% of its admitted claim as it has dissented with the plan. On the other hand, Tata Capital Financial Services Ltd. was provided with 75.63% of its admitted claim; other financial creditors (Indian Overseas Bank, Bank of Baroda and Punjab National Bank) were provided with 45% of their admitted claims. Given that the resolution process began well before the amended regulation came into force (in fact, January, 2017) and the resolution plan was prepared and approved before that event, the wide observations of the NCLAT, requiring the appellant to match the pay-out (offered to other financial creditors) to Hero, was not justified. The court notices that the liquidation value of the corporate debtor was ascertained at 36 crores. Against the ? said amount, the appellant offered 54 crores. The plan was ? approved and, except the objections of the dissenting creditor (i.e Hero), the plan has attained finality. Having regard to these factors and circumstances, it is held that the NCLATs order and directions were not justified. They are hereby set aside; the order of the NCLT is hereby restored.
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GAURAV HARGOVINDBHAI DAVE Vs. ASSET RECONSTRUCTION COMPANY (INDIA) LTD
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R.F. Nariman, J. 1. In the present case, the Respondent No.2 was declared NPA on 21.07.2011. At that point of time, the State Bank of India filed two O.As in the Debt Recovery Tribunal in 2012 in order to recover a total debt of 50 Crores of rupees. In the meanwhile, by an assignment dated 28.03.2014, the State Bank of India assigned the aforesaid debt to Respondent No.1. The Debt Recovery Tribunal proceedings reached judgment on 10.06.2016, the Tribunal holding that the O.As filed before it were not maintainable for the reasons given therein.2. As against the aforesaid judgment, Special Civil Application Nos. 10621-10622 were filed before the Gujarat High Court which resulted in the High Court remanding the aforesaid matter. From this order, a Special Leave Petition was dismissed on 25.03.2017.3. An independent proceeding was then begun by Respondent No.1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in Column II which was the date on which default occurred, the date of the NPA i.e. 21.07.2011 was filled up. The NCLT applied Article 62 of the Limitation Act which reads as follows:- table Applying the aforesaid Article, the NCLT reached the conclusion that since the limitation period was 12 years from the date on which the money suit has become due, the aforesaid claim was filed within limitation and hence admitted the Section 7 application. The NCLAT vide the impugned judgment held, following its earlier judgments, that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Consequently, it dismissed the appeal.4. Mr. Aditya Parolia, learned counsel appearing on behalf of the appellant has argued that Article 137 being a residuary article would apply on the facts of this case, and as right to sue accrued only on and from 21.07.2011, three years having elapsed since then in 2014, the Section 7 application filed in 2017 is clearly out of time. He has also referred to our judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 in order to buttress his argument that it is Article 137 of the Limitation Act which will apply to the facts of this case.5. Mr. Debal Banerjee, learned Senior Counsel, appearing on behalf of the respondents, countered this by stressing, in particular, para 7 of the B.K. Educational Services Private Limited (supra) and reiterated the finding of the NCLT that it would be Article 62 of the Limitation Act that would be attracted to the facts of this case. He further argued that, being a commercial Code, a commercial interpretation has to be given so as to make the Code workable.6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.
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1[ds]6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.
| 1 | 790 | 243 |
### 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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R.F. Nariman, J. 1. In the present case, the Respondent No.2 was declared NPA on 21.07.2011. At that point of time, the State Bank of India filed two O.As in the Debt Recovery Tribunal in 2012 in order to recover a total debt of 50 Crores of rupees. In the meanwhile, by an assignment dated 28.03.2014, the State Bank of India assigned the aforesaid debt to Respondent No.1. The Debt Recovery Tribunal proceedings reached judgment on 10.06.2016, the Tribunal holding that the O.As filed before it were not maintainable for the reasons given therein.2. As against the aforesaid judgment, Special Civil Application Nos. 10621-10622 were filed before the Gujarat High Court which resulted in the High Court remanding the aforesaid matter. From this order, a Special Leave Petition was dismissed on 25.03.2017.3. An independent proceeding was then begun by Respondent No.1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in Column II which was the date on which default occurred, the date of the NPA i.e. 21.07.2011 was filled up. The NCLT applied Article 62 of the Limitation Act which reads as follows:- table Applying the aforesaid Article, the NCLT reached the conclusion that since the limitation period was 12 years from the date on which the money suit has become due, the aforesaid claim was filed within limitation and hence admitted the Section 7 application. The NCLAT vide the impugned judgment held, following its earlier judgments, that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Consequently, it dismissed the appeal.4. Mr. Aditya Parolia, learned counsel appearing on behalf of the appellant has argued that Article 137 being a residuary article would apply on the facts of this case, and as right to sue accrued only on and from 21.07.2011, three years having elapsed since then in 2014, the Section 7 application filed in 2017 is clearly out of time. He has also referred to our judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 in order to buttress his argument that it is Article 137 of the Limitation Act which will apply to the facts of this case.5. Mr. Debal Banerjee, learned Senior Counsel, appearing on behalf of the respondents, countered this by stressing, in particular, para 7 of the B.K. Educational Services Private Limited (supra) and reiterated the finding of the NCLT that it would be Article 62 of the Limitation Act that would be attracted to the facts of this case. He further argued that, being a commercial Code, a commercial interpretation has to be given so as to make the Code workable.6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.
### Response:
1
### Explanation:
6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.
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Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo and Others
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case, the holder of the estate and gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son. The sons plea, however, failed because the Privy Council held that "if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does not become a co-sharer with his father in the estate, the inalienability of the estate depends upon the custom, which must be proved, or it may be in some cases, upon the nature of the tenure". This decision was again affirmed by the Privy Council in the First Pittapur case [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833]. As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by Will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the conditions of the tenure which has the same effect.31. Again in Chinnathayi alias Veeralakshmi, v. Kulasekara Pandiya Naicker [1952 SCR 241 : AIR 1952 SC 29 : 1952 SCJ 1 ] it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied on the part of the junior members of the family to giver up the chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce a satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender an interest in the impartible estate or the relinquishment of the right succession and an intention to impress upon the zamindari the character of separate property. In Pushavathi Viziaram Gajapathi Raj Manne case [(1964) 2 SCR 403 : AIR 1964 SC 118 ] this Court reiterated the same legal position.32. For the foregoing discussion this appeal must fail.33. This leads us to the other appeal filed by the defendant. The contention of the learned counsel for the defendant-appellant in this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance) given by the impartible estate holder. This High Court, therefore, erred in law passing a decree for possession and mesne profits against the defendant-appellant. It was further contended that the Nagaruntari Estate was a partible estate.34. As regards the first contention it is open to a co-sharer to remain in the possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted. The learned counsel for plaintiff-respondent on the other hand urged that the defendants possession was only as a trespasser. In support of his contention he placed reliance on Collector of Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 : 1952 SCR 43 : 1951 SCJ 752]. The majority took the view that :The position of the Corporation and its predecessor it title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in the title of the Corporation took possession of the land under the invalid grant. This possession had continued openly, as if of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and is predecessor in title and had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent out only for the purposes of the market in terms of the Government Resolution of 1865.35. In the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.
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0[ds]22. As regards the second reason, the arguments is based on Section 17 read Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration Section 49 of the Registration Act provides that no document required by Section 17 or by any provisions ofthe Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, (b) * * *, (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of Section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property. Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.23. Admittedly the defendant was a member of a joint Hindu family, Even in an impartible estate was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder. His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as aof Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 : 1952 SCR 43 : 1951 SCJIn the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.
| 0 | 7,092 | 579 |
### 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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case, the holder of the estate and gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son. The sons plea, however, failed because the Privy Council held that "if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does not become a co-sharer with his father in the estate, the inalienability of the estate depends upon the custom, which must be proved, or it may be in some cases, upon the nature of the tenure". This decision was again affirmed by the Privy Council in the First Pittapur case [(1918) LR 45 IA 148 : AIR 1918 PC 81 : 16 ALJ 833]. As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by Will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the conditions of the tenure which has the same effect.31. Again in Chinnathayi alias Veeralakshmi, v. Kulasekara Pandiya Naicker [1952 SCR 241 : AIR 1952 SC 29 : 1952 SCJ 1 ] it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied on the part of the junior members of the family to giver up the chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce a satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender an interest in the impartible estate or the relinquishment of the right succession and an intention to impress upon the zamindari the character of separate property. In Pushavathi Viziaram Gajapathi Raj Manne case [(1964) 2 SCR 403 : AIR 1964 SC 118 ] this Court reiterated the same legal position.32. For the foregoing discussion this appeal must fail.33. This leads us to the other appeal filed by the defendant. The contention of the learned counsel for the defendant-appellant in this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance) given by the impartible estate holder. This High Court, therefore, erred in law passing a decree for possession and mesne profits against the defendant-appellant. It was further contended that the Nagaruntari Estate was a partible estate.34. As regards the first contention it is open to a co-sharer to remain in the possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted. The learned counsel for plaintiff-respondent on the other hand urged that the defendants possession was only as a trespasser. In support of his contention he placed reliance on Collector of Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 : 1952 SCR 43 : 1951 SCJ 752]. The majority took the view that :The position of the Corporation and its predecessor it title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in the title of the Corporation took possession of the land under the invalid grant. This possession had continued openly, as if of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and is predecessor in title and had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent out only for the purposes of the market in terms of the Government Resolution of 1865.35. In the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.
### Response:
0
### Explanation:
22. As regards the second reason, the arguments is based on Section 17 read Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration Section 49 of the Registration Act provides that no document required by Section 17 or by any provisions ofthe Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, (b) * * *, (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of Section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property. Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.23. Admittedly the defendant was a member of a joint Hindu family, Even in an impartible estate was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder. His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as aof Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469 : 1952 SCR 43 : 1951 SCJIn the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.
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COMMERCIAL TAXES OFFICER Vs. M/S. BOMBAY MACHINERY STORE
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issue in favour of revenue, referred to the aforesaid two circulars in upholding the concept of constructive delivery. 11. As per the aforesaid circulars, retention of goods by the transporter beyond the time stipulated therein (being 30 days as per the later circular) would imply that constructive delivery of the goods has been made by the transporter to the consignee. In such a situation, the transit status of the goods would stand terminated and the deeming provision in first explanation to Section 3 of the 1956 Act conceiving the time-point of delivery as termination of movement shall cease to operate. 12. In this set of appeals we have already indicated that transfer of documents of title were effected subsequent to the goods reaching the location within destination State. But when the goods are delivered to a carrier for transmission, first explanation to Section 3 of the 1956 Act specifies that movement of the goods would be deemed to commence at the time when goods are delivered to a carrier and shall terminate at the time when delivery is taken from such carrier. The said provision does not qualify the term delivery with any timeframe within which such delivery shall have to take place. In such circumstances fixing of timeframe by order of the Tax Administration of the State in our opinion would be impermissible. 13. Before the High Court, the revenue authorities has relied on Section 51 of the Sale of Goods Act, 1930 (hereinafter referred to as the 1930 Act). But the said provision also does not aid or assist the revenue. Section 51 of the 1930 Act reads: - 51. Duration of transit.—(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier or other bailee for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee. (2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent, the transit is at an end and it is immaterial that a further destination for the goods may have been indicated by the buyer. (4) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5) When goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier or as agent of the buyer. (6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end. (7) Where part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transit, unless such part delivery has been given in such circumstances as to show an agreement to give up possession of the whole of the goods 14. Sub-clause (1) of the said provision specifies when the goods shall be deemed to be in course of transit and sub-clause (3) thereof lays down the conditions for termination of transit. That condition is an acknowledgment to the buyer or his agent by the carrier that he holds the goods on his behalf. There is no material to suggest such an acknowledgment was made by the independent transporter in these appeals. In such circumstances we do not think the decision of the High Court requires any interference. 15. In the case of Arjan Dass Gupta (supra) principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in first explanation to that Section. That fiction is that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to first explanation to that Section. There is no scope of incorporating any further word to qualify the nature and scope of the expression delivery within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment which is assailed in Civil Appeal No.2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practise. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature.
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0[ds]8. We must add here that the decision in the case of Guljag (supra) was subsequently carried up in appeal before this Court. It appears from the records of this Court that two of these appeals were disposed of on 30 th September, 2010 as the assessee chose to approach the statutory forum whereas another appeal was dismissed having regard to the quantum of tax involved in the appeal10. In the two appeals in which the respondent is Bombay Machinery Stores, sales pertained to financial years before the circulars came into subsistence. In these instances of sales, the Commercial Tax officer in the respective orders treated retention of goods beyond 30 days in the transporters godown as the cut-off period. After that date, the assessee was deemed to have had taken constructive delivery of goods and sale beyond that period within the State of Rajasthan was held to be local sales and subjected to sales tax under the State Law. Same reasoning was followed in the respective orders of the tax authorities forming subject-matters of two appeals involving Unicolour Chemicals Company. The Tax Board, while deciding the issue in favour of revenue, referred to the aforesaid two circulars in upholding the concept of constructive delivery11. As per the aforesaid circulars, retention of goods by the transporter beyond the time stipulated therein (being 30 days as per the later circular) would imply that constructive delivery of the goods has been made by the transporter to the consignee. In such a situation, the transit status of the goods would stand terminated and the deeming provision in first explanation to Section 3 of the 1956 Act conceiving the time-point of delivery as termination of movement shall cease to operate12. In this set of appeals we have already indicated that transfer of documents of title were effected subsequent to the goods reaching the location within destination State. But when the goods are delivered to a carrier for transmission, first explanation to Section 3 of the 1956 Act specifies that movement of the goods would be deemed to commence at the time when goods are delivered to a carrier and shall terminate at the time when delivery is taken from such carrier. The said provision does not qualify the term delivery with any timeframe within which such delivery shall have to take place. In such circumstances fixing of timeframe by order of the Tax Administration of the State in our opinion would be impermissibleThere is no material to suggest such an acknowledgment was made by the independent transporter in these appeals. In such circumstances we do not think the decision of the High Court requires any interference15. In the case of Arjan Dass Gupta (supra) principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in first explanation to that Section. That fiction is that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to first explanation to that Section. There is no scope of incorporating any further word to qualify the nature and scope of the expression delivery within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment which is assailed in Civil Appeal No.2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practise. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature.
| 0 | 6,270 | 827 |
### 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:
issue in favour of revenue, referred to the aforesaid two circulars in upholding the concept of constructive delivery. 11. As per the aforesaid circulars, retention of goods by the transporter beyond the time stipulated therein (being 30 days as per the later circular) would imply that constructive delivery of the goods has been made by the transporter to the consignee. In such a situation, the transit status of the goods would stand terminated and the deeming provision in first explanation to Section 3 of the 1956 Act conceiving the time-point of delivery as termination of movement shall cease to operate. 12. In this set of appeals we have already indicated that transfer of documents of title were effected subsequent to the goods reaching the location within destination State. But when the goods are delivered to a carrier for transmission, first explanation to Section 3 of the 1956 Act specifies that movement of the goods would be deemed to commence at the time when goods are delivered to a carrier and shall terminate at the time when delivery is taken from such carrier. The said provision does not qualify the term delivery with any timeframe within which such delivery shall have to take place. In such circumstances fixing of timeframe by order of the Tax Administration of the State in our opinion would be impermissible. 13. Before the High Court, the revenue authorities has relied on Section 51 of the Sale of Goods Act, 1930 (hereinafter referred to as the 1930 Act). But the said provision also does not aid or assist the revenue. Section 51 of the 1930 Act reads: - 51. Duration of transit.—(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier or other bailee for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee. (2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent, the transit is at an end and it is immaterial that a further destination for the goods may have been indicated by the buyer. (4) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5) When goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier or as agent of the buyer. (6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end. (7) Where part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transit, unless such part delivery has been given in such circumstances as to show an agreement to give up possession of the whole of the goods 14. Sub-clause (1) of the said provision specifies when the goods shall be deemed to be in course of transit and sub-clause (3) thereof lays down the conditions for termination of transit. That condition is an acknowledgment to the buyer or his agent by the carrier that he holds the goods on his behalf. There is no material to suggest such an acknowledgment was made by the independent transporter in these appeals. In such circumstances we do not think the decision of the High Court requires any interference. 15. In the case of Arjan Dass Gupta (supra) principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in first explanation to that Section. That fiction is that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to first explanation to that Section. There is no scope of incorporating any further word to qualify the nature and scope of the expression delivery within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment which is assailed in Civil Appeal No.2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practise. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature.
### Response:
0
### Explanation:
8. We must add here that the decision in the case of Guljag (supra) was subsequently carried up in appeal before this Court. It appears from the records of this Court that two of these appeals were disposed of on 30 th September, 2010 as the assessee chose to approach the statutory forum whereas another appeal was dismissed having regard to the quantum of tax involved in the appeal10. In the two appeals in which the respondent is Bombay Machinery Stores, sales pertained to financial years before the circulars came into subsistence. In these instances of sales, the Commercial Tax officer in the respective orders treated retention of goods beyond 30 days in the transporters godown as the cut-off period. After that date, the assessee was deemed to have had taken constructive delivery of goods and sale beyond that period within the State of Rajasthan was held to be local sales and subjected to sales tax under the State Law. Same reasoning was followed in the respective orders of the tax authorities forming subject-matters of two appeals involving Unicolour Chemicals Company. The Tax Board, while deciding the issue in favour of revenue, referred to the aforesaid two circulars in upholding the concept of constructive delivery11. As per the aforesaid circulars, retention of goods by the transporter beyond the time stipulated therein (being 30 days as per the later circular) would imply that constructive delivery of the goods has been made by the transporter to the consignee. In such a situation, the transit status of the goods would stand terminated and the deeming provision in first explanation to Section 3 of the 1956 Act conceiving the time-point of delivery as termination of movement shall cease to operate12. In this set of appeals we have already indicated that transfer of documents of title were effected subsequent to the goods reaching the location within destination State. But when the goods are delivered to a carrier for transmission, first explanation to Section 3 of the 1956 Act specifies that movement of the goods would be deemed to commence at the time when goods are delivered to a carrier and shall terminate at the time when delivery is taken from such carrier. The said provision does not qualify the term delivery with any timeframe within which such delivery shall have to take place. In such circumstances fixing of timeframe by order of the Tax Administration of the State in our opinion would be impermissibleThere is no material to suggest such an acknowledgment was made by the independent transporter in these appeals. In such circumstances we do not think the decision of the High Court requires any interference15. In the case of Arjan Dass Gupta (supra) principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in first explanation to that Section. That fiction is that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to first explanation to that Section. There is no scope of incorporating any further word to qualify the nature and scope of the expression delivery within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment which is assailed in Civil Appeal No.2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practise. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature.
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B. A. Jayaram and Others Etc Vs. Union of India and Others
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and the expenditure incurred". Nor is the court to interpose itself by assuming the role of a cost accountant and attempt to balance meticulously the cost of the services, benefits and facilities against the realisation from the levy. And, if the levy as a whole is justified by the need generally, it does not have to be separately justified with reference to every group of persons claiming to require and receive less service than others. Once the nexus between the levy and service is seen, the levy must be upheld unless the compensatory character is shown to be wholly or partly, a mere mockery and in truth a design which is destructive of the freedom of inter-state trade, commerce and inter-course.By virtue of the power given to them by Entries 56 and 57 of List II every one of the States has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State. Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of Art. 301, unless, as we said, the tax is a mere pretext designed to injure the freedom of interstate trade, commerce and intercourse. The nexus between the levy and the service is so patent in the case of such taxes that we need say no more about it. The Karnataka Motor Vehicles Taxation Act and the Motor Vehicles Taxation Acts of other States are without doubt regulatory and compensatory legislations outside the range of Art. 301 of the Constitution.4. It is true that the object of enacting sec. 63 (7) by the Parliament was to promote all-India and inter-state tourist traffic. But taxes on vehicles .. suitable for use on roads is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy. True again, Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the 17 principles on which taxes may be levied on mechanically propelled vehicles. But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any such principles, eit her expressly or by necessary implication. The States power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legislating sec. 63 (7), the State Legislatures are not obliged to fall in line and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted. There is no question of impairing the freedom under Art. 301 by refusing to exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxation on tourist vehicles increases as each State adds its bit of straw, but, then, each State is concerned with its coffers and has the right to tax vehicles using its roads; and, the contribution which a tourist carriage is required to make to its treasury is no more than what other contract carriages are required to make. We are firmly of the view that there is no impairment of the freedom under Art. 301. The special submission on behalf of the Karnataka operators that the withdrawal by the Karnataka Government of the exemption granted to outsiders has resulted in the Karnataka operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired the freedom under Art. 301 is but the same general sub- mission, seen through glasses of a different tint. It does not even have the merit that the withdrawal of the Karnataka exemption affects them directly. The submission is rejected.One of the submissions made to us was that if there was a misuse of the all-India permits, the remedy was to punish the wrong doers by taking appropriate action against the wrong-doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. That is a matter for the Legislature and its delegate to decide but not for the court. If the situation had become so malignant that drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drastic procedure.5. It was submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefore, the State was wrong in treating them alike. It was said that treatment of unequals as equals had resulted in an infringement of Art. 14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and this was also a violation of Art. 14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were made to us in our opinion, fall in the category of arguments which. we mentioned earlier, have only to be stated to be rejected. The answers are self-evident., The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion.
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0[ds]It is true that the object of enacting sec. 63 (7) by the Parliament was to promote all-India and inter-state tourist traffic. But taxes on vehicles .. suitable for use on roads is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy. True again, Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the 17 principles on which taxes may be levied on mechanically propelled vehicles. But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any such principles, eit her expressly or by necessary implication. The States power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legislating sec. 63 (7), the State Legislatures are not obliged to fall in line and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted. There is no question of impairing the freedom under Art. 301 by refusing to exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxation on tourist vehicles increases as each State adds its bit of straw, but, then, each State is concerned with its coffers and has the right to tax vehicles using its roads; and, the contribution which a tourist carriage is required to make to its treasury is no more than what other contract carriages are required to make. We are firmly of the view that there is no impairment of the freedom under Art. 301. The special submission on behalf of the Karnataka operators that the withdrawal by the Karnataka Government of the exemption granted to outsiders has resulted in the Karnataka operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired the freedom under Art. 301 is but the same general sub- mission, seen through glasses of a different tint. It does not even have the merit that the withdrawal of the Karnataka exemption affects them directly. The submission is rejected.One of the submissions made to us was that if there was a misuse of the all-India permits, the remedy was to punish the wrong doers by taking appropriate action against the wrong-doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. That is a matter for the Legislature and its delegate to decide but not for the court. If the situation had become so malignant that drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drasticwas submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefore, the State was wrong in treating them alike. It was said that treatment of unequals as equals had resulted in an infringement of Art. 14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and this was also a violation of Art. 14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were made to us in our opinion, fall in the category of arguments which. we mentioned earlier, have only to be stated to be rejected. The answers are self-evident., The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion.
| 0 | 5,149 | 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:
and the expenditure incurred". Nor is the court to interpose itself by assuming the role of a cost accountant and attempt to balance meticulously the cost of the services, benefits and facilities against the realisation from the levy. And, if the levy as a whole is justified by the need generally, it does not have to be separately justified with reference to every group of persons claiming to require and receive less service than others. Once the nexus between the levy and service is seen, the levy must be upheld unless the compensatory character is shown to be wholly or partly, a mere mockery and in truth a design which is destructive of the freedom of inter-state trade, commerce and inter-course.By virtue of the power given to them by Entries 56 and 57 of List II every one of the States has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State. Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of Art. 301, unless, as we said, the tax is a mere pretext designed to injure the freedom of interstate trade, commerce and intercourse. The nexus between the levy and the service is so patent in the case of such taxes that we need say no more about it. The Karnataka Motor Vehicles Taxation Act and the Motor Vehicles Taxation Acts of other States are without doubt regulatory and compensatory legislations outside the range of Art. 301 of the Constitution.4. It is true that the object of enacting sec. 63 (7) by the Parliament was to promote all-India and inter-state tourist traffic. But taxes on vehicles .. suitable for use on roads is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy. True again, Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the 17 principles on which taxes may be levied on mechanically propelled vehicles. But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any such principles, eit her expressly or by necessary implication. The States power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legislating sec. 63 (7), the State Legislatures are not obliged to fall in line and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted. There is no question of impairing the freedom under Art. 301 by refusing to exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxation on tourist vehicles increases as each State adds its bit of straw, but, then, each State is concerned with its coffers and has the right to tax vehicles using its roads; and, the contribution which a tourist carriage is required to make to its treasury is no more than what other contract carriages are required to make. We are firmly of the view that there is no impairment of the freedom under Art. 301. The special submission on behalf of the Karnataka operators that the withdrawal by the Karnataka Government of the exemption granted to outsiders has resulted in the Karnataka operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired the freedom under Art. 301 is but the same general sub- mission, seen through glasses of a different tint. It does not even have the merit that the withdrawal of the Karnataka exemption affects them directly. The submission is rejected.One of the submissions made to us was that if there was a misuse of the all-India permits, the remedy was to punish the wrong doers by taking appropriate action against the wrong-doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. That is a matter for the Legislature and its delegate to decide but not for the court. If the situation had become so malignant that drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drastic procedure.5. It was submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefore, the State was wrong in treating them alike. It was said that treatment of unequals as equals had resulted in an infringement of Art. 14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and this was also a violation of Art. 14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were made to us in our opinion, fall in the category of arguments which. we mentioned earlier, have only to be stated to be rejected. The answers are self-evident., The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion.
### Response:
0
### Explanation:
It is true that the object of enacting sec. 63 (7) by the Parliament was to promote all-India and inter-state tourist traffic. But taxes on vehicles .. suitable for use on roads is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy. True again, Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, as explained by us at the outset, it is therefore open to the Parliament to lay down the 17 principles on which taxes may be levied on mechanically propelled vehicles. But the Parliament while enacting S. 63 (7) of the Motor Vehicles Act refrained from indicating any such principles, eit her expressly or by necessary implication. The States power to tax and to exempt was left uninhibited. It may be that a a State legislation, plenary or subordinate, which exempts "non-home-state tourist vehicles" from tax would be advancing the object of sec. 63 (7) of the Motor Vehicles Act and accelerating inter-state trade, commerce and intercourse. But merely by Parliament legislating sec. 63 (7), the State Legislatures are not obliged to fall in line and to so arrange their tax laws as to advance the object of sec. 63 (7), be it ever so desirable. The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted. There is no question of impairing the freedom under Art. 301 by refusing to exempt or by withdrawing an exemption. Not to pat on the back is not to stab in the back. True, straw by straw, the burden of taxation on tourist vehicles increases as each State adds its bit of straw, but, then, each State is concerned with its coffers and has the right to tax vehicles using its roads; and, the contribution which a tourist carriage is required to make to its treasury is no more than what other contract carriages are required to make. We are firmly of the view that there is no impairment of the freedom under Art. 301. The special submission on behalf of the Karnataka operators that the withdrawal by the Karnataka Government of the exemption granted to outsiders has resulted in the Karnataka operators having to pay tax in every State in the country and, therefore, the withdrawal has impaired the freedom under Art. 301 is but the same general sub- mission, seen through glasses of a different tint. It does not even have the merit that the withdrawal of the Karnataka exemption affects them directly. The submission is rejected.One of the submissions made to us was that if there was a misuse of the all-India permits, the remedy was to punish the wrong doers by taking appropriate action against the wrong-doers by cancelling the permit, if necessary, but not to withdraw the benefit of the exemption altogether, even in the case of honest operators. That is a matter for the Legislature and its delegate to decide but not for the court. If the situation had become so malignant that drastic action was called for, it is not for the court to substitute its judgment to say that the object could perhaps be well achieved by adopting a less drasticwas submitted that all-India tourist vehicles do not use the roads of the State as much as the contract carriages operating in the State and therefore, the State was wrong in treating them alike. It was said that treatment of unequals as equals had resulted in an infringement of Art. 14 of the Constitution. It was also submitted that vehicles holding inter-State permits under inter-state agreements were still exempt from tax and this was also a violation of Art. 14 of the Constitution. Another contention raised was that there was some sort of promissory estoppel which prevented the State Government from withdrawing the exemption. Yet another argument was that the withdrawal of the exemption was arbitrary and therefore, judicial review was necessary. These and other like submissions which were made to us in our opinion, fall in the category of arguments which. we mentioned earlier, have only to be stated to be rejected. The answers are self-evident., The submissions are totally without merit and we see no justification for increasing the length of our judgment by further futile discussion.
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Tamil Nadu Electricity Board Vs. TNEB-Thozhilalar Aykkiya Sangam
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given revision of DA in every six months without any deviation by applying the State Government formula, at the same time, it was on par with the Central Government dearness allowance. 30. There is no merit in the contention that by BP (FB) No.58 dated 18.07.1998, the Board has unilaterally altered the terms of settlement between the parties. On perusal of Boards proceeding BP (FB) No.58 dated 18.07.1998, it is seen that Clause 2 of the Board proceedings inter alia provides for various other terms like work norms, retrenchment etc. It is not the case of the respondent(s) union that those terms of the settlement were not acted upon. The respondent(s) union are not right in taking one clause from the Board proceeding dated 18.07.1998 and contending that in so far as payment of Dearness Allowance is concerned, the Settlement dated 08.07.1998 has been unilaterally altered. It is pertinent to note that the respondent(s) have not challenged that portion of the Boards proceeding BP(FB) No.58 dated 18.07.1998; the respondent(s) cannot approbate and reprobate the Board Proceedings dated 18.07.1998. Therefore, the contention that revision of Dearness Allowance as granted by the State Government to their employees is the unilateral alteration of the terms of settlement lacks merit. 31. Contention of the respondent(s) is that the employees of the appellant-Board are not State Government employees and they cannot be treated on par with the State Government employees. It is not the contention of the appellant-Board that the employees of the Board are to be treated on par with the State Government employees nor the same is the issue for consideration before us. It is not disputed that Board is run by the State Government and unless the funds are provided by the State Government, the Electricity Board would not have adequate funds of its own to pay the wages. In that factual scenario, the decision of the Board to adopt the rate of Dearness Allowance as granted by the State Government cannot be said to be arbitrary. 32. The learned Single Judge as well as the Division Bench proceeded under the erroneous footing that the issue has been covered by the orders of the High Court issued in the two batches of W.P . Nos.8574-8578 of 1992 and W.Ps. No.10474 of 1999 etc. The orders in those batch of writ petitions were only against crediting of the arrears of Dearness Allowance sanctioned. After referring to the earlier judgment in W.P . Nos.8574-8578 of 1992 dated 16.10.1992 and W.Ps. No.10474 of 1999 dated 11.08.1999, the High Court held that there is no stipulation in the settlement that the arrears of Dearness Allowance for the past period would be credited to the General Provident Fund account of the individual employee and in the absence of any stipulation in the settlement, it is not open to the Board to credit arrears of Dearness Allowance for the earlier period to the credit of General Provident Fund account of the respective employee unless individual employee gives the written consent The orders of the High Court in those earlier writ petitions were only against crediting of the arrears of the Dearness Allowance in the respective provident fund account of the employees, wherein, the court directed the Board to pay arrears in cash and restrained the Board from deducting any arrears of the Dearness Allowance and crediting the same into the General Provident Fund account of the workmen. 33. Of course, in the earlier batch of writ petitions i.e. Writ Petition Nos.8574-8578, the High Court inter-alia held that the Board cannot unilaterally transgress from the terms of the settlement and observed as under:- The settlement, as long as it is in force, will govern both the parties. One of the parties cannot unilaterally transgress the terms of the agreement or ignore the same. Caluse-4 referred to above does not enable the respondent to make the payment in the mode adopted by the Government. Clause-4 only directs that the formula which is followed by the Government should be adopted by the Board and that is only for the purpose of calculating the dearness allowance on the basis of the Price Index and nothing more than that. Hence, the contention that the respondent is bound to adopt the method followed by the Government for payment is without any substance. 34. The learned Single Judge as well as the Division Bench did not keep in view that in the present dispute, settlement dated 08.07.1998 was followed by BP(FB) No.58 dated 18.07.1998 which clearly stipulates that the Dearness Allowance would be paid to the employees of the Board as granted by the State Government to its employees. It is pertinent to note that the representation of respondent-CITU dated 12.07.2002 was rejected by the Board vide order dated 13.09.2002 which refers to BP(FB) No.58 dated 18.07.1998 to the effect that the revised Dearness Allowance would be sanctioned to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. The learned Single Judge and the Division Bench erred in not considering the matter in the proper perspective and erred in holding that the issue has been covered by the earlier judgment in Writ Petition No.10474 of 1999 dated 11.08.1999. 35. The learned Single Judge and the Division Bench did not keep in view the terms of the Settlement and the Board Proceeding BP(FB) No. 58 dated 18.07.1998 which stipulates that Dearness Allowance would be revised on par with the State Government employees and that it has been consistently followed by the appellant-Board. The High Court erred not keeping in view the extremely difficult financial position of the State Government and the Board and also the additional financial burden which would be imposed upon the appellant-Board if the demands of the respondent(s)-union are acceded to. The High Court, in our view, was clearly in error in allowing the writ petition and the impugned judgment cannot be sustained and liable to be set aside.
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1[ds]19. As discussed earlier, payment of Dearness Allowance is governed by the Wage Settlement dated 08.07.1998 and the Board Proceedings BP (FB) No.58 dated 18.07.1998. The increases in Dearness Allowance which fell due w.e.f. 01.07.1998, 01.01.1999, 01.07.1999, 01.01.2000, 01.07.2000, 01.01.2001 and 01.07.2001 were all paid as per the above agreed term only. As per settlement dated 08.07.1998, the Dearness Allowance rates will be revised twice in a year i.e. on 1 st January and on 1 st July taking into account the variations in the previous twelve months average of the All India Consumer Price Index numbers adopting the same formula as followed by the State Government. The Board Proceeding BP(FB) No.58 dated 18.07.1998 stipulated that the revised Dearness Allowance would be sanctioned to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. It is pertinent to note that in the subsequent wage settlement entered into between the appellant-Board and the respondent-union on 15.10.2005 (w.e.f. 01.12.2002) stipulates the existing practice of sanction of Dearness Allowance to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. The subsequent settlement also reiterates that all along the revision of Dearness Allowance to the employees of the Board was on par with the employees of the State Government. The respondent(s) union having agreed that the revised Dearness Allowance will be sanctioned as granted by the State Government to their employees, the appellant-Board has been consistently adopting the revised rates of Dearness Allowance following various State Government orders. Having agreed for the grant of revised Dearness Allowance on par with the State Government employees, the respondent(s) union cannot seek for revision in Dearness Allowance at a higher rate than what was granted by the State Government to its employees20. The appellant-Board has been adopting the formula of the State Government in revising the rate of Dearness Allowance, which was settled under Section 18(1) of the Indian Disputes Act, 1947 and the settlement between the appellant-Board and the respondent union. The appellant-Board is not bound to adopt the revised rate of Central Government, when the settlement prescribes the formula to be adopted from the rates of the State Government21. The High Court, in our view, did not keep in view the well settled principles that the revision of wage or Dearness Allowance would depend upon the ability and the financial position of the employer. In G.O. Ms. No.346 in and by which the Government of TN revised the Dearness Allowance from 45% to 49% (w.e.f. 01.10.2002), it was made clear that the Government of TN was facing extremely difficult financial position and therefore, decided to sanction additional four per cent (45% to 49%) of Dearness Allowance to the employees of the State Government w.e.f. 01.10.2002. Having regard to the difficult finance situation which the State and the Board were facing and having regard to the terms of the settlement, respondent(s) union cannot seek for sanction of enhanced rate of Dearness Allowance on par with the Central Government employees22. Each State Government following their own rate of Dearness Allowance payable to their employees may be adopting the revised Dearness Allowance of the Central Government. There is no rule or obligation on the State Government to always adopt the Dearness Allowance as revised by the Central Government. It is absolutely not necessary for the State Government to adopt the Dearness Allowance rates fixed by the Central Government. It should be looked from the financial position of the State Government to adopt its own rates/revised rates of Dearness Allowance. The Board, being the State Government undertaking, the money has to come from the State Government. Keeping in view the extremely difficult financial position of the State Government, Boards order revising the Dearness Allowance rate from 45% to 49% only from 01.10.2002 cannot be said to be arbitrary or in violation of the terms of the settlement23. The main source of finance of the Electricity Board is the State Government; the Board is run by the State Government. Unless the funds are provided by the State Government, the Electricity Board would not have sufficient funds of its own to pay the wages and the revised Dearness Allowance to its employees. Considering the financial difficulties which the State Government was facing, the revision of the Dearness Allowance from the above said dates at above said rate cannot be said to be arbitrary or without any reason24. While considering the grievance of wage structure or Dearness Allowance, the importance of considering the financial implications while providing benefits to employees has been noted by the Supreme Court in number of judgments. The Supreme Court in Workmen of Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda (1969) 1 SCC 266 while dismissing the appeal preferred by the workmen, has confirmed the view taken by the Tribunal which rejected the demand of the employees of the Board for Dearness Allowance that it should be fixed with the scale prescribed for the Ahmedabad Mill Owners Association on the ground that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if such demands are acceded to28. It is within the power of the Board to set a cut-off date for payment of revised Dearness Allowance keeping in view its financial constraints. Moreover, the settlement agreement and the decisions taken by the Board in the Board Proceedings are to be harmoniously construed. Having regard to the financial difficulties which the State Government was facing, appellant-Board being a State Government undertaking, decided to adopt the State Governments revised Dearness Allowance at the same rate and from the same date. In view of extremely difficult financial situation, not only the State Government employees but all the employees of various other corporations were granted revised Dearness Allowance at the rate of 49% only w.e.f. 01.10.2002 and 52% w.e.f. 01.07.2003. The respondent(s) union cannot insist for revision of Dearness Allowance at a higher rate than what was being paid to the State Government employees30. There is no merit in the contention that by BP (FB) No.58 dated 18.07.1998, the Board has unilaterally altered the terms of settlement between the parties. On perusal of Boards proceeding BP (FB) No.58 dated 18.07.1998, it is seen that Clause 2 of the Board proceedings inter alia provides for various other terms like work norms, retrenchment etc. It is not the case of the respondent(s) union that those terms of the settlement were not acted upon. The respondent(s) union are not right in taking one clause from the Board proceeding dated 18.07.1998 and contending that in so far as payment of Dearness Allowance is concerned, the Settlement dated 08.07.1998 has been unilaterally altered. It is pertinent to note that the respondent(s) have not challenged that portion of the Boards proceeding BP(FB) No.58 dated 18.07.1998; the respondent(s) cannot approbate and reprobate the Board Proceedings dated 18.07.1998. Therefore, the contention that revision of Dearness Allowance as granted by the State Government to their employees is the unilateral alteration of the terms of settlement lacks merit31. Contention of the respondent(s) is that the employees of the appellant-Board are not State Government employees and they cannot be treated on par with the State Government employees. It is not the contention of the appellant-Board that the employees of the Board are to be treated on par with the State Government employees nor the same is the issue for consideration before us. It is not disputed that Board is run by the State Government and unless the funds are provided by the State Government, the Electricity Board would not have adequate funds of its own to pay the wages. In that factual scenario, the decision of the Board to adopt the rate of Dearness Allowance as granted by the State Government cannot be said to be arbitraryThe orders of the High Court in those earlier writ petitions were only against crediting of the arrears of the Dearness Allowance in the respective provident fund account of the employees, wherein, the court directed the Board to pay arrears in cash and restrained the Board from deducting any arrears of the Dearness Allowance and crediting the same into the General Provident Fund account of the workmen34. The learned Single Judge as well as the Division Bench did not keep in view that in the present dispute, settlement dated 08.07.1998 was followed by BP(FB) No.58 dated 18.07.1998 which clearly stipulates that the Dearness Allowance would be paid to the employees of the Board as granted by the State Government to its employees. It is pertinent to note that the representation of respondent-CITU dated 12.07.2002 was rejected by the Board vide order dated 13.09.2002 which refers to BP(FB) No.58 dated 18.07.1998 to the effect that the revised Dearness Allowance would be sanctioned to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. The learned Single Judge and the Division Bench erred in not considering the matter in the proper perspective and erred in holding that the issue has been covered by the earlier judgment in Writ Petition No.10474 of 1999 dated 11.08.199935. The learned Single Judge and the Division Bench did not keep in view the terms of the Settlement and the Board Proceeding BP(FB) No. 58 dated 18.07.1998 which stipulates that Dearness Allowance would be revised on par with the State Government employees and that it has been consistently followed by the appellant-Board. The High Court erred not keeping in view the extremely difficult financial position of the State Government and the Board and also the additional financial burden which would be imposed upon the appellant-Board if the demands of the respondent(s)-union are acceded to. The High Court, in our view, was clearly in error in allowing the writ petition and the impugned judgment cannot be sustained and liable to be set aside.
| 1 | 5,727 | 1,851 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
given revision of DA in every six months without any deviation by applying the State Government formula, at the same time, it was on par with the Central Government dearness allowance. 30. There is no merit in the contention that by BP (FB) No.58 dated 18.07.1998, the Board has unilaterally altered the terms of settlement between the parties. On perusal of Boards proceeding BP (FB) No.58 dated 18.07.1998, it is seen that Clause 2 of the Board proceedings inter alia provides for various other terms like work norms, retrenchment etc. It is not the case of the respondent(s) union that those terms of the settlement were not acted upon. The respondent(s) union are not right in taking one clause from the Board proceeding dated 18.07.1998 and contending that in so far as payment of Dearness Allowance is concerned, the Settlement dated 08.07.1998 has been unilaterally altered. It is pertinent to note that the respondent(s) have not challenged that portion of the Boards proceeding BP(FB) No.58 dated 18.07.1998; the respondent(s) cannot approbate and reprobate the Board Proceedings dated 18.07.1998. Therefore, the contention that revision of Dearness Allowance as granted by the State Government to their employees is the unilateral alteration of the terms of settlement lacks merit. 31. Contention of the respondent(s) is that the employees of the appellant-Board are not State Government employees and they cannot be treated on par with the State Government employees. It is not the contention of the appellant-Board that the employees of the Board are to be treated on par with the State Government employees nor the same is the issue for consideration before us. It is not disputed that Board is run by the State Government and unless the funds are provided by the State Government, the Electricity Board would not have adequate funds of its own to pay the wages. In that factual scenario, the decision of the Board to adopt the rate of Dearness Allowance as granted by the State Government cannot be said to be arbitrary. 32. The learned Single Judge as well as the Division Bench proceeded under the erroneous footing that the issue has been covered by the orders of the High Court issued in the two batches of W.P . Nos.8574-8578 of 1992 and W.Ps. No.10474 of 1999 etc. The orders in those batch of writ petitions were only against crediting of the arrears of Dearness Allowance sanctioned. After referring to the earlier judgment in W.P . Nos.8574-8578 of 1992 dated 16.10.1992 and W.Ps. No.10474 of 1999 dated 11.08.1999, the High Court held that there is no stipulation in the settlement that the arrears of Dearness Allowance for the past period would be credited to the General Provident Fund account of the individual employee and in the absence of any stipulation in the settlement, it is not open to the Board to credit arrears of Dearness Allowance for the earlier period to the credit of General Provident Fund account of the respective employee unless individual employee gives the written consent The orders of the High Court in those earlier writ petitions were only against crediting of the arrears of the Dearness Allowance in the respective provident fund account of the employees, wherein, the court directed the Board to pay arrears in cash and restrained the Board from deducting any arrears of the Dearness Allowance and crediting the same into the General Provident Fund account of the workmen. 33. Of course, in the earlier batch of writ petitions i.e. Writ Petition Nos.8574-8578, the High Court inter-alia held that the Board cannot unilaterally transgress from the terms of the settlement and observed as under:- The settlement, as long as it is in force, will govern both the parties. One of the parties cannot unilaterally transgress the terms of the agreement or ignore the same. Caluse-4 referred to above does not enable the respondent to make the payment in the mode adopted by the Government. Clause-4 only directs that the formula which is followed by the Government should be adopted by the Board and that is only for the purpose of calculating the dearness allowance on the basis of the Price Index and nothing more than that. Hence, the contention that the respondent is bound to adopt the method followed by the Government for payment is without any substance. 34. The learned Single Judge as well as the Division Bench did not keep in view that in the present dispute, settlement dated 08.07.1998 was followed by BP(FB) No.58 dated 18.07.1998 which clearly stipulates that the Dearness Allowance would be paid to the employees of the Board as granted by the State Government to its employees. It is pertinent to note that the representation of respondent-CITU dated 12.07.2002 was rejected by the Board vide order dated 13.09.2002 which refers to BP(FB) No.58 dated 18.07.1998 to the effect that the revised Dearness Allowance would be sanctioned to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. The learned Single Judge and the Division Bench erred in not considering the matter in the proper perspective and erred in holding that the issue has been covered by the earlier judgment in Writ Petition No.10474 of 1999 dated 11.08.1999. 35. The learned Single Judge and the Division Bench did not keep in view the terms of the Settlement and the Board Proceeding BP(FB) No. 58 dated 18.07.1998 which stipulates that Dearness Allowance would be revised on par with the State Government employees and that it has been consistently followed by the appellant-Board. The High Court erred not keeping in view the extremely difficult financial position of the State Government and the Board and also the additional financial burden which would be imposed upon the appellant-Board if the demands of the respondent(s)-union are acceded to. The High Court, in our view, was clearly in error in allowing the writ petition and the impugned judgment cannot be sustained and liable to be set aside.
### Response:
1
### Explanation:
of the Electricity Board is the State Government; the Board is run by the State Government. Unless the funds are provided by the State Government, the Electricity Board would not have sufficient funds of its own to pay the wages and the revised Dearness Allowance to its employees. Considering the financial difficulties which the State Government was facing, the revision of the Dearness Allowance from the above said dates at above said rate cannot be said to be arbitrary or without any reason24. While considering the grievance of wage structure or Dearness Allowance, the importance of considering the financial implications while providing benefits to employees has been noted by the Supreme Court in number of judgments. The Supreme Court in Workmen of Gujarat Electricity Board, Baroda v. Gujarat Electricity Board, Baroda (1969) 1 SCC 266 while dismissing the appeal preferred by the workmen, has confirmed the view taken by the Tribunal which rejected the demand of the employees of the Board for Dearness Allowance that it should be fixed with the scale prescribed for the Ahmedabad Mill Owners Association on the ground that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if such demands are acceded to28. It is within the power of the Board to set a cut-off date for payment of revised Dearness Allowance keeping in view its financial constraints. Moreover, the settlement agreement and the decisions taken by the Board in the Board Proceedings are to be harmoniously construed. Having regard to the financial difficulties which the State Government was facing, appellant-Board being a State Government undertaking, decided to adopt the State Governments revised Dearness Allowance at the same rate and from the same date. In view of extremely difficult financial situation, not only the State Government employees but all the employees of various other corporations were granted revised Dearness Allowance at the rate of 49% only w.e.f. 01.10.2002 and 52% w.e.f. 01.07.2003. The respondent(s) union cannot insist for revision of Dearness Allowance at a higher rate than what was being paid to the State Government employees30. There is no merit in the contention that by BP (FB) No.58 dated 18.07.1998, the Board has unilaterally altered the terms of settlement between the parties. On perusal of Boards proceeding BP (FB) No.58 dated 18.07.1998, it is seen that Clause 2 of the Board proceedings inter alia provides for various other terms like work norms, retrenchment etc. It is not the case of the respondent(s) union that those terms of the settlement were not acted upon. The respondent(s) union are not right in taking one clause from the Board proceeding dated 18.07.1998 and contending that in so far as payment of Dearness Allowance is concerned, the Settlement dated 08.07.1998 has been unilaterally altered. It is pertinent to note that the respondent(s) have not challenged that portion of the Boards proceeding BP(FB) No.58 dated 18.07.1998; the respondent(s) cannot approbate and reprobate the Board Proceedings dated 18.07.1998. Therefore, the contention that revision of Dearness Allowance as granted by the State Government to their employees is the unilateral alteration of the terms of settlement lacks merit31. Contention of the respondent(s) is that the employees of the appellant-Board are not State Government employees and they cannot be treated on par with the State Government employees. It is not the contention of the appellant-Board that the employees of the Board are to be treated on par with the State Government employees nor the same is the issue for consideration before us. It is not disputed that Board is run by the State Government and unless the funds are provided by the State Government, the Electricity Board would not have adequate funds of its own to pay the wages. In that factual scenario, the decision of the Board to adopt the rate of Dearness Allowance as granted by the State Government cannot be said to be arbitraryThe orders of the High Court in those earlier writ petitions were only against crediting of the arrears of the Dearness Allowance in the respective provident fund account of the employees, wherein, the court directed the Board to pay arrears in cash and restrained the Board from deducting any arrears of the Dearness Allowance and crediting the same into the General Provident Fund account of the workmen34. The learned Single Judge as well as the Division Bench did not keep in view that in the present dispute, settlement dated 08.07.1998 was followed by BP(FB) No.58 dated 18.07.1998 which clearly stipulates that the Dearness Allowance would be paid to the employees of the Board as granted by the State Government to its employees. It is pertinent to note that the representation of respondent-CITU dated 12.07.2002 was rejected by the Board vide order dated 13.09.2002 which refers to BP(FB) No.58 dated 18.07.1998 to the effect that the revised Dearness Allowance would be sanctioned to the employees of the Board as granted by the State Government to their employees at the same rate and from the same date. The learned Single Judge and the Division Bench erred in not considering the matter in the proper perspective and erred in holding that the issue has been covered by the earlier judgment in Writ Petition No.10474 of 1999 dated 11.08.199935. The learned Single Judge and the Division Bench did not keep in view the terms of the Settlement and the Board Proceeding BP(FB) No. 58 dated 18.07.1998 which stipulates that Dearness Allowance would be revised on par with the State Government employees and that it has been consistently followed by the appellant-Board. The High Court erred not keeping in view the extremely difficult financial position of the State Government and the Board and also the additional financial burden which would be imposed upon the appellant-Board if the demands of the respondent(s)-union are acceded to. The High Court, in our view, was clearly in error in allowing the writ petition and the impugned judgment cannot be sustained and liable to be set aside.
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Power Grid Corp.Of India Ltd Vs. Punjab State Power Corp.Ltd
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think it just and proper to quote the relevant provision contained in Regulations, 2009 for the just decision of the case. Clause (12) of Regulation 3 defines `date of commercial operation (COD) as under:- "(12) `Date of Commercial Operation of `COD means(a) In relation to a unit or block of the thermal generating station, the date declared by the generating company after demonstrating the maximum continuous rating (MCR) or the installed capacity (IC) through a successful trial run after notice;(b) To the beneficiaries, from 0000 hour of which scheduling process as per the Indian Electricity Grid Code (IEGC) is fully implemented, and in relation to the generating station as a whole, the date of commercial operation of the last unit or block of the generating station;(c) In relation to a unit of hydro generating station, the date declared by the generating company from 0000 hour of which, after notice to the beneficiaries, scheduling process in accordance with the Indian Electricity Grid Code is fully implemented, and in relation to the generating station as a whole, the date declared by the generating company after demonstrating peaking capability corresponding to installed capacity of the generating station through a successful trial run, after notice to the beneficiaries:Note1. In case the hydro generating station with pondage or storage is not able to demonstrate peaking capability corresponding to the installed capacity for the reasons of insufficient reservoir or pond level, the date of commercial operation of the last unit of the generating station shall be considered as the date of commercial operation of the generating station as a whole, provided that it will be mandatory for such hydro generating station to demonstrate peaking capability equivalent to installed capacity of the generating unit or the generating station as and when such reservoir/pond level is achieved.2. In case of purely run-of-river hydro generating station if the unit or the generating station is declared under commercial operation during lean inflows period when the water is not sufficient for such demonstration, it shall be mandatory for such hydro generating station or unit to demonstrate peaking capability equivalent to installed capacity as and when sufficient inflow is available.(d) In relation to the transmission system, the date declared by the transmission licensee from 0000 hour of which an element of the transmission system is in regular service after successful charging and trial operation:Provided that the date shall be the first day of a calendar month and transmission charge for the element shall be payable and its availability shall be accounted for, from that date:Provided further that in case an element of the transmission system is ready for regular service but is prevented from providing such service for reasons not attributable to the transmission licensee, its suppliers or contractors, the Commission may approve the date of commercial operation prior to the element coming into regular service." 7. The language in the above definition is clear and unambiguous. We agree with the Tribunal that COD of transmission lines can be achieved only on fulfilment of following three conditions:- (i) The line has been charged successfully, (ii) Its trial operation has been successfully carried out, and (iii) It is in regular service. 8. It is contended on behalf of the appellant that what has been misinterpreted by the Tribunal is the second Proviso of clause (12) of Regulation 3 which provides that where transmission system is ready for regulatory services but prevented from providing the service for reasons not attributable to the transmission licensee, the commission has the power to approve the date of commercial operation prior to element coming into regular service. It is not disputed in the present case that Barh Sub-station was being constructed by NTPC, and Power Grid cannot be made to suffer as nothing was attributable to it.9. On the other hand, on behalf of respondent No. 1 it is argued that the transmission line cannot be said to have been completed unless switchgear and other connected works are also completed, as provided in the definition of "transmission lines". 10. We have considered the rival submissions. Sub-section (72) of Section 2 of Electricity Act, 2003 defines the word "transmission lines", which reads as under: - "2(72) "transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works." 11. From the above definition, it is clear that switchgear and other works are part of transmission lines. In our opinion, Regulation 3 (12) of the Regulations, 2009 cannot be interpreted against the spirit of the definition of "transmission lines" given in the statute. It is evident from record that it is not a disputed fact that switchgear at Barh end of Barh-Balia line for protection and metering were to be installed by NTPC and the same was not done by it when transmission line was completed by the appellant. As such the appellant might have suffered due to delay on the part of NTPC in completing the transmission lines for some period. But beneficiaries, including respondent No. 1, cannot be made liable to pay for this delay w.e.f. 01.07.2010 as the energy supply line had not started on said date.12. We are apprised at the bar that meanwhile during the pendency of these appeals, in compliance of the interim order, after hearing all the concerned parties, C.E.R.C. has decided the matter on 30-06-2015, and transmission line has been now declared successfully charged w.e.f. 01-09-2011 and the commercial operation has started on said date. However, the order dated 30-06-2015 passed by CERC is stated to be operative subject to decision of this Court in the present appeals, due to the interim order passed by this court.
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0[ds](72) of Section 2 of Electricity Act, 2003 defines the word "transmission lines", which reads as"transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or atogether with anywn transformers,switchgear and other worksnecessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers,From the above definition, it is clear thatswitchgear and other worksare part of transmission lines. In our opinion, Regulation 3 (12) of the Regulations, 2009 cannot be interpreted against the spirit of the definition of "transmission lines" given in the statute. It is evident from record that it is not a disputed fact that switchgear at Barh end ofline for protection and metering were to be installed by NTPC and the same was not done by it when transmission line was completed by the appellant. As such the appellant might have suffered due to delay on the part of NTPC in completing the transmission lines for some period. But beneficiaries, including respondent No. 1, cannot be made liable to pay for this delay w.e.f. 01.07.2010 as the energy supply line had not started on said date.12. We are apprised at the bar that meanwhile during the pendency of these appeals, in compliance of the interim order, after hearing all the concerned parties, C.E.R.C. has decided the matter onand transmission line has been now declared successfully charged w.e.f.and the commercial operation has started on said date. However, the order datedpassed by CERC is stated to be operative subject to decision of this Court in the present appeals, due to the interim order passed by this court.
| 0 | 1,736 | 341 |
### 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:
think it just and proper to quote the relevant provision contained in Regulations, 2009 for the just decision of the case. Clause (12) of Regulation 3 defines `date of commercial operation (COD) as under:- "(12) `Date of Commercial Operation of `COD means(a) In relation to a unit or block of the thermal generating station, the date declared by the generating company after demonstrating the maximum continuous rating (MCR) or the installed capacity (IC) through a successful trial run after notice;(b) To the beneficiaries, from 0000 hour of which scheduling process as per the Indian Electricity Grid Code (IEGC) is fully implemented, and in relation to the generating station as a whole, the date of commercial operation of the last unit or block of the generating station;(c) In relation to a unit of hydro generating station, the date declared by the generating company from 0000 hour of which, after notice to the beneficiaries, scheduling process in accordance with the Indian Electricity Grid Code is fully implemented, and in relation to the generating station as a whole, the date declared by the generating company after demonstrating peaking capability corresponding to installed capacity of the generating station through a successful trial run, after notice to the beneficiaries:Note1. In case the hydro generating station with pondage or storage is not able to demonstrate peaking capability corresponding to the installed capacity for the reasons of insufficient reservoir or pond level, the date of commercial operation of the last unit of the generating station shall be considered as the date of commercial operation of the generating station as a whole, provided that it will be mandatory for such hydro generating station to demonstrate peaking capability equivalent to installed capacity of the generating unit or the generating station as and when such reservoir/pond level is achieved.2. In case of purely run-of-river hydro generating station if the unit or the generating station is declared under commercial operation during lean inflows period when the water is not sufficient for such demonstration, it shall be mandatory for such hydro generating station or unit to demonstrate peaking capability equivalent to installed capacity as and when sufficient inflow is available.(d) In relation to the transmission system, the date declared by the transmission licensee from 0000 hour of which an element of the transmission system is in regular service after successful charging and trial operation:Provided that the date shall be the first day of a calendar month and transmission charge for the element shall be payable and its availability shall be accounted for, from that date:Provided further that in case an element of the transmission system is ready for regular service but is prevented from providing such service for reasons not attributable to the transmission licensee, its suppliers or contractors, the Commission may approve the date of commercial operation prior to the element coming into regular service." 7. The language in the above definition is clear and unambiguous. We agree with the Tribunal that COD of transmission lines can be achieved only on fulfilment of following three conditions:- (i) The line has been charged successfully, (ii) Its trial operation has been successfully carried out, and (iii) It is in regular service. 8. It is contended on behalf of the appellant that what has been misinterpreted by the Tribunal is the second Proviso of clause (12) of Regulation 3 which provides that where transmission system is ready for regulatory services but prevented from providing the service for reasons not attributable to the transmission licensee, the commission has the power to approve the date of commercial operation prior to element coming into regular service. It is not disputed in the present case that Barh Sub-station was being constructed by NTPC, and Power Grid cannot be made to suffer as nothing was attributable to it.9. On the other hand, on behalf of respondent No. 1 it is argued that the transmission line cannot be said to have been completed unless switchgear and other connected works are also completed, as provided in the definition of "transmission lines". 10. We have considered the rival submissions. Sub-section (72) of Section 2 of Electricity Act, 2003 defines the word "transmission lines", which reads as under: - "2(72) "transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works." 11. From the above definition, it is clear that switchgear and other works are part of transmission lines. In our opinion, Regulation 3 (12) of the Regulations, 2009 cannot be interpreted against the spirit of the definition of "transmission lines" given in the statute. It is evident from record that it is not a disputed fact that switchgear at Barh end of Barh-Balia line for protection and metering were to be installed by NTPC and the same was not done by it when transmission line was completed by the appellant. As such the appellant might have suffered due to delay on the part of NTPC in completing the transmission lines for some period. But beneficiaries, including respondent No. 1, cannot be made liable to pay for this delay w.e.f. 01.07.2010 as the energy supply line had not started on said date.12. We are apprised at the bar that meanwhile during the pendency of these appeals, in compliance of the interim order, after hearing all the concerned parties, C.E.R.C. has decided the matter on 30-06-2015, and transmission line has been now declared successfully charged w.e.f. 01-09-2011 and the commercial operation has started on said date. However, the order dated 30-06-2015 passed by CERC is stated to be operative subject to decision of this Court in the present appeals, due to the interim order passed by this court.
### Response:
0
### Explanation:
(72) of Section 2 of Electricity Act, 2003 defines the word "transmission lines", which reads as"transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or atogether with anywn transformers,switchgear and other worksnecessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers,From the above definition, it is clear thatswitchgear and other worksare part of transmission lines. In our opinion, Regulation 3 (12) of the Regulations, 2009 cannot be interpreted against the spirit of the definition of "transmission lines" given in the statute. It is evident from record that it is not a disputed fact that switchgear at Barh end ofline for protection and metering were to be installed by NTPC and the same was not done by it when transmission line was completed by the appellant. As such the appellant might have suffered due to delay on the part of NTPC in completing the transmission lines for some period. But beneficiaries, including respondent No. 1, cannot be made liable to pay for this delay w.e.f. 01.07.2010 as the energy supply line had not started on said date.12. We are apprised at the bar that meanwhile during the pendency of these appeals, in compliance of the interim order, after hearing all the concerned parties, C.E.R.C. has decided the matter onand transmission line has been now declared successfully charged w.e.f.and the commercial operation has started on said date. However, the order datedpassed by CERC is stated to be operative subject to decision of this Court in the present appeals, due to the interim order passed by this court.
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Collector of Commercial Taxes, Cuttack Vs. M/s. Bharat Sabai Grass Limited
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such question as was formulated by the learned Judges of the High Court actually arose on the facts found in this case, and he has further submitted that the order calling for the reference and the answer which the High Court ultimately gave are based on a complete misapprehension of the decision in Sales Tax Officer, Pilibhit v. Merrs. Budh Prakash Jai Prakash (A) (supra). 7. Let us first see what were the facts found in this case. The Sales Tax Officer who made the assessment on December 16, 1949, proceeded on the footing that there were completed sales (as distinguished from mere agreements to sell) of bamboo and sabai grass in Orissa, and the respondents in spite of sufficient time having been given to them did not produce any account books or any other evidence to prove that the sales took place elsewhere. No question was raised before the Sales Tax Officer that the transactions on which assessment was sought to be made, were not sales but mere agreements to sell. The same view was again reiterated by the Assistant Collector of Sales Tax, who was the appellate authority and before whom also the contention was that the sales did not take place in Orissa. He repelled the contention and said that there was no evidence to show that the sales did not take place in Orissa. It may be stated here that admittedly the Orient Paper Mill was situated in Orissa and a sale of bamboo and sabai grass to that paper mill was a sale in Orissa. The respondents tried to make out a case that the Orient Paper Mill was a registered dealer, and therefore they were entitled to exemption under R. 27 (2) ; it was pointed out that it was for the respondents to adduce evidence that a portion of their gross turnover represented sales of non-taxable goods and unless and until they did so, the assessing authority was entitled to construe the total turnover as taxable. Even before the Commissioner, Northern Division, Sambalpur, the position taken was that the sales to the Bengal Mills did not take place in Orissa; this plea was met by pointing out that though the respondents were given an opportunity, they failed to produce evidence to show that the sales took place elsewhere.Therefore, it appears to us that on the facts found no such question of law as was formulated by the High Court actually arose for decision in the present case. There was no finding by any of the assessing authorities that a tax was imposed on mere agreements to sell or that the sales of bamboo and sabai grass made by the respondents to different mills in Bengal and Orissa did not involve a transfer of property in goods for cash on deferred payment. 8. The case of Budh Prakash Jai Prakash (A) (supra) dealt with the definition of sale in the Uttar Pradesh Sales Tax Act, XV of 1948, which definition included forward contracts and the point for decision was whether the power to impose tax on the sale of goods under entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935 included the power to impose a tax on forward contracts. In that context the distinction between a sale of goods and an agreement for a sale of goods was pointed out, and the legal position was thus summarised: "The position therefore is that the liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only agreement to sell, which can only result in a claim for damages; the power conferred under entry 48 to impose tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods and not when there is a mere agreement to sell." In the case under our consideration, on the facts found, no question arose of the imposition of a tax on a mere agreement to sell. The definition of sale in the Act, unlike the definition in the Uttar Pradesh Sales Tax Act, 1948, did not purport to tax a mere agreement to sell nor did the second proviso thereto purport to do so. What the second proviso did was to fix the suits of the sale in Orissa when the goods were actually in Orissa at the time the contract of sale was made. This is altogether different from imposing a tax on a mere agreement to sell.It is worthy of note that the assessment in this case relates to a pre-Constitution period and we are not concerned in this case with the vexed question of the effect of the second proviso with reference to transactions in inter-State Commerce referred to in Art. 286 of the Constitution. The proviso has, however, a bearing on the question whether the doctrine of nexus is applicable to Sales Tax Law. That question has been exhaustively dealt with by this Court in Tata Iron and Steel Co. Ltd. v. The State of Bihar (Civil Appeals Nos. 412 and 413 of 1956 decided today): (since reported in (AIR 1958 S C 452) (B) ) with regard to a similar proviso in the Bihar Act. So far as the facts of the present case are concerned,we are clearly of the view that the decision in Budh Prakash Jai Prakash (A)(supra)has no application and the learned Judges of the High Court were in error in thinking that the principle of that decision was attracted to the facts of this case. 9. Therefore, we have come to the conclusion that the reference directed by the Orissa High Court was itself incompetent, because no such question of law as was formulated by that Court arose on the facts of the case and it was quite unnecessary to answer such a question in the present case.
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1[ds]In the case under our consideration, on the facts found, no question arose of the imposition of a tax on a mere agreement to sell. The definition of sale in the Act, unlike the definition in the Uttar Pradesh Sales Tax Act, 1948, did not purport to tax a mere agreement to sell nor did the second proviso thereto purport to do so. What the second proviso did was to fix the suits of the sale in Orissa when the goods were actually in Orissa at the time the contract of sale was made. This is altogether different from imposing a tax on a mere agreement to sell.It is worthy of note that the assessment in this case relates to a pre-Constitution period and we are not concerned in this case with the vexed question of the effect of the second proviso with reference to transactions in inter-State Commerce referred to in Art. 286 of the Constitution. The proviso has, however, a bearing on the question whether the doctrine of nexus is applicable to Sales Tax Law. That question has been exhaustively dealt with by this Court in Tata Iron and Steel Co. Ltd. v. The State of Bihar (Civil Appeals Nos. 412 and 413 of 1956 decided today): (since reported in (AIR 1958 S C 452) (B) ) with regard to a similar proviso in the Bihar Act. So far as the facts of the present case are concerned,we are clearly of the view that the decision in Budh Prakash Jai Prakash (A)(supra)has no application and the learned Judges of the High Court were in error in thinking that the principle of that decision was attracted to the facts of this case9. Therefore, we have come to the conclusion that the reference directed by the Orissa High Court was itself incompetent, because no such question of law as was formulated by that Court arose on the facts of the case and it was quite unnecessary to answer such a question in the present caseTherefore, it appears to us that on the facts found no such question of law as was formulated by the High Court actually arose for decision in the present case. There was no finding by any of the assessing authorities that a tax was imposed on mere agreements to sell or that the sales of bamboo and sabai grass made by the respondents to different mills in Bengal and Orissa did not involve a transfer of property in goods for cash on deferred payment.
| 1 | 2,731 | 459 |
### 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:
such question as was formulated by the learned Judges of the High Court actually arose on the facts found in this case, and he has further submitted that the order calling for the reference and the answer which the High Court ultimately gave are based on a complete misapprehension of the decision in Sales Tax Officer, Pilibhit v. Merrs. Budh Prakash Jai Prakash (A) (supra). 7. Let us first see what were the facts found in this case. The Sales Tax Officer who made the assessment on December 16, 1949, proceeded on the footing that there were completed sales (as distinguished from mere agreements to sell) of bamboo and sabai grass in Orissa, and the respondents in spite of sufficient time having been given to them did not produce any account books or any other evidence to prove that the sales took place elsewhere. No question was raised before the Sales Tax Officer that the transactions on which assessment was sought to be made, were not sales but mere agreements to sell. The same view was again reiterated by the Assistant Collector of Sales Tax, who was the appellate authority and before whom also the contention was that the sales did not take place in Orissa. He repelled the contention and said that there was no evidence to show that the sales did not take place in Orissa. It may be stated here that admittedly the Orient Paper Mill was situated in Orissa and a sale of bamboo and sabai grass to that paper mill was a sale in Orissa. The respondents tried to make out a case that the Orient Paper Mill was a registered dealer, and therefore they were entitled to exemption under R. 27 (2) ; it was pointed out that it was for the respondents to adduce evidence that a portion of their gross turnover represented sales of non-taxable goods and unless and until they did so, the assessing authority was entitled to construe the total turnover as taxable. Even before the Commissioner, Northern Division, Sambalpur, the position taken was that the sales to the Bengal Mills did not take place in Orissa; this plea was met by pointing out that though the respondents were given an opportunity, they failed to produce evidence to show that the sales took place elsewhere.Therefore, it appears to us that on the facts found no such question of law as was formulated by the High Court actually arose for decision in the present case. There was no finding by any of the assessing authorities that a tax was imposed on mere agreements to sell or that the sales of bamboo and sabai grass made by the respondents to different mills in Bengal and Orissa did not involve a transfer of property in goods for cash on deferred payment. 8. The case of Budh Prakash Jai Prakash (A) (supra) dealt with the definition of sale in the Uttar Pradesh Sales Tax Act, XV of 1948, which definition included forward contracts and the point for decision was whether the power to impose tax on the sale of goods under entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935 included the power to impose a tax on forward contracts. In that context the distinction between a sale of goods and an agreement for a sale of goods was pointed out, and the legal position was thus summarised: "The position therefore is that the liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only agreement to sell, which can only result in a claim for damages; the power conferred under entry 48 to impose tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods and not when there is a mere agreement to sell." In the case under our consideration, on the facts found, no question arose of the imposition of a tax on a mere agreement to sell. The definition of sale in the Act, unlike the definition in the Uttar Pradesh Sales Tax Act, 1948, did not purport to tax a mere agreement to sell nor did the second proviso thereto purport to do so. What the second proviso did was to fix the suits of the sale in Orissa when the goods were actually in Orissa at the time the contract of sale was made. This is altogether different from imposing a tax on a mere agreement to sell.It is worthy of note that the assessment in this case relates to a pre-Constitution period and we are not concerned in this case with the vexed question of the effect of the second proviso with reference to transactions in inter-State Commerce referred to in Art. 286 of the Constitution. The proviso has, however, a bearing on the question whether the doctrine of nexus is applicable to Sales Tax Law. That question has been exhaustively dealt with by this Court in Tata Iron and Steel Co. Ltd. v. The State of Bihar (Civil Appeals Nos. 412 and 413 of 1956 decided today): (since reported in (AIR 1958 S C 452) (B) ) with regard to a similar proviso in the Bihar Act. So far as the facts of the present case are concerned,we are clearly of the view that the decision in Budh Prakash Jai Prakash (A)(supra)has no application and the learned Judges of the High Court were in error in thinking that the principle of that decision was attracted to the facts of this case. 9. Therefore, we have come to the conclusion that the reference directed by the Orissa High Court was itself incompetent, because no such question of law as was formulated by that Court arose on the facts of the case and it was quite unnecessary to answer such a question in the present case.
### Response:
1
### Explanation:
In the case under our consideration, on the facts found, no question arose of the imposition of a tax on a mere agreement to sell. The definition of sale in the Act, unlike the definition in the Uttar Pradesh Sales Tax Act, 1948, did not purport to tax a mere agreement to sell nor did the second proviso thereto purport to do so. What the second proviso did was to fix the suits of the sale in Orissa when the goods were actually in Orissa at the time the contract of sale was made. This is altogether different from imposing a tax on a mere agreement to sell.It is worthy of note that the assessment in this case relates to a pre-Constitution period and we are not concerned in this case with the vexed question of the effect of the second proviso with reference to transactions in inter-State Commerce referred to in Art. 286 of the Constitution. The proviso has, however, a bearing on the question whether the doctrine of nexus is applicable to Sales Tax Law. That question has been exhaustively dealt with by this Court in Tata Iron and Steel Co. Ltd. v. The State of Bihar (Civil Appeals Nos. 412 and 413 of 1956 decided today): (since reported in (AIR 1958 S C 452) (B) ) with regard to a similar proviso in the Bihar Act. So far as the facts of the present case are concerned,we are clearly of the view that the decision in Budh Prakash Jai Prakash (A)(supra)has no application and the learned Judges of the High Court were in error in thinking that the principle of that decision was attracted to the facts of this case9. Therefore, we have come to the conclusion that the reference directed by the Orissa High Court was itself incompetent, because no such question of law as was formulated by that Court arose on the facts of the case and it was quite unnecessary to answer such a question in the present caseTherefore, it appears to us that on the facts found no such question of law as was formulated by the High Court actually arose for decision in the present case. There was no finding by any of the assessing authorities that a tax was imposed on mere agreements to sell or that the sales of bamboo and sabai grass made by the respondents to different mills in Bengal and Orissa did not involve a transfer of property in goods for cash on deferred payment.
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H.M.M. Limited Vs. Director of Entry Tax, West Bengal and Others
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that excise duty was not paid at the time of the removal of the concerned consignment from the factory at Nabha.14. According to the appellants case in the Writ Petition, when the goods arrive at the Hussenabad check-post in bulk, packed in steel drums containing 182 kgs. of Horlicks Powder each, the goods have no other value except the cost of manufacture, freight and insurance a nd only after the Horlicks powder, packed in the steel drums, enters the Calcutta Metropolitan Area the cost of bottling inputs, bottling expenses, manufactures profits are added and excise duty is paid on the total value after the g oods are put into marketable condition. It is also the appellants case in the writ Petition that the appellant never intended to sell and had never sold Horlicks powder in bulk containers in the Calcutta Metropolitan Area or elsewhere an d that respondents 2 and 4 in the Writ Petition, namely, Assistant Director (Entry Tax) and the Inspector (Entry Tax) Hussenabad Check Post, rejected the documents produced for the purposes of assessment under rule 12 (1) and wrongly resorted t o the "best judgment" method of ascertainment of the value under rule 12 (2) and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at Calcutta. It is not possible to accept the appellants contention that the Horlicks powder packed in steel drums containing 182 kgs. each had no value at the Hussenabad Check Post apart from the cost of manufacture, freight and insurance. That may be so from the point of view of the manufacture, but it cannot be the value of the goods in the Calcutta Metropolitan Area where the value should include in addition to the aforesaid items the cost of further transport into the Calcutta Market Area from the Hussenabad Check Post, excise duty if not already paid at the time of the removal of the goods from the factory at Nabha, wholesalers and retailers profits and sales-tax. Under rule 12 (1) the value declared must include cost price of the goods as given in the bill, invoice or consignment note or any other document of like nature, shipping duties where applicable, insurance, excise duty and sales-tax. It may be that the process of bottling and labelling is resorted to after the bulk consignment is received into the Calcutta Metropolitan Area for the purpose of convenience and it may also be that it may not form part of the value of the goods at the point of entry. The cost of bottling and labelling the Horlicks powder into unit bottles inside t he Calcutta Metropolitan Area would be negligible. It may be that the appellant may be entitled to ask the Assessing Officer to take that also into consideration in the case of assessment under rule 12 (1). But since the value declared by the appellant was far less than the value showed by the appellant company itself in Form V as Rs. 1, 22, 304 working out to Rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the Calcutta Metropolitan Area, it is not possible to hold that the Assessing Officer was not justified in rejecting the value declared by the appellant as Rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the "best judgment" basis as provided for in rule 12 (2) on the basis of the approximate assessable value of the goods in the Calcutta Metropolitan Area.15. The learned counsel for the appellant invited our attention to this Courts decision in Commissioner of Income-Tax, West Bengal-1 v. Padamchand Ramgopal, (1) where in his investigation, the Income-Tax Officer found two insignificant mistakes in the assessees accounts for the year 1953-54. Those mistakes were (1) failure to bring into account an item of interest received and (2) incorrectness of an entry relating to the receipt of income. No mistake was found in the accounts relating to assessment years 1954-55 to 1957-58. However, the Income-Tax Officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head "interest" for each of the years as escaped income. The Tribunal accepted the additions made by the Income-Tax Officer. But this Court held that the Income-tax Officer and the Tribunal erred in holding that the additions could be made in accordance with law and it was further held that the two mistakes afforded no basis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. We think that the ratio of that decision will not apply to the facts of the present case. In Haji Lal Mohd. Biri Works, Allahabad v. The State of U.P. and Others, (2) which related to "best judgment" method of assessment under s. 18 (4) of the M.P. General Sales Tax Act, it has been held that the Assessing Authority while making "best judgment assessment" should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the Assessing Authority is his bonafide estimate and is based on a rational basis the fact that there is no good proof in respect of that estimate does not render the assessment illegal. There is no material in the present case for us to hold that the Assessing Authority had any bias against the appellant or that his estimate of the assessable value of the goods is not a bonafide estimate or that it has no rational basis. We find that the Assessing Officer had sufficient reason for not accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the "best judgment" basis is rational and based on the appellants own selling agents price list in the Calcutta Metropolitan Area.
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0[ds]The appellant produced before the Assessing Offic er a copy of the excise gate pass showing the value to be in respect of the same goods and in respect of the same dealer. The copy purported to be of C. No. CE/20/BPE/70 dated 5.12.1970 of the Superintendent of Central Excise and Customs, Patiala , and it was contended on behalf of the appellant before the Assessing Officer that excise duty was paid at Nabha. But the copy produced did not purport to be a certified copy and the original was not produced, and, therefore, the Assessing Officer he ld that excise duty was not paid at the time of removal of the goods from the factory at Nabha. It is the appellants contention that only in the case of export of goods directly from Nabha or Rajahmundry having regard to the central excise re gulations, clearance of goods from the factory is effected on payment of excise duty on the invoice value which includes the cost and manufacturers profit. But the copy produced was not a certified copy and the original gate pass was not produced. There fore, it could not be held that the Assessing Officer was not justified in rejecting the copy and holding that excise duty was not paid at the time of the removal of the concerned consignment from the factory atto the appellants case in the Writ Petition, when the goods arrive at the Hussenabad check-post in bulk, packed in steel drums containing 182 kgs. of Horlicks Powder each, the goods have no other value except the cost of manufacture, freight and insurance a nd only after the Horlicks powder, packed in the steel drums, enters the Calcutta Metropolitan Area the cost of bottling inputs, bottling expenses, manufactures profits are added and excise duty is paid on the total value after the g oods are put into marketable condition. It is also the appellants case in the writ Petition that the appellant never intended to sell and had never sold Horlicks powder in bulk containers in the Calcutta Metropolitan Area or elsewhere an d that respondents 2 and 4 in the Writ Petition, namely, Assistant Director (Entry Tax) and the Inspector (Entry Tax) Hussenabad Check Post, rejected the documents produced for the purposes of assessment under rule 12 (1) and wrongly resorted t o the "best judgment" method of ascertainment of the value under rule 12 (2) and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at Calcutta. It is not possible to accept the appellants contention that the Horlicks powder packed in steel drums containing 182 kgs. each had no value at the Hussenabad Check Post apart from the cost of manufacture, freight and insurance. That may be so from the point of view of the manufacture, but it cannot be the value of the goods in the Calcutta Metropolitan Area where the value should include in addition to the aforesaid items the cost of further transport into the Calcutta Market Area from the Hussenabad Check Post, excise duty if not already paid at the time of the removal of the goods from the factory at Nabha, wholesalers and retailers profits and sales-tax. Under rule 12 (1) the value declared must include cost price of the goods as given in the bill, invoice or consignment note or any other document of like nature, shipping duties where applicable, insurance, excise duty and sales-tax. It may be that the process of bottling and labelling is resorted to after the bulk consignment is received into the Calcutta Metropolitan Area for the purpose of convenience and it may also be that it may not form part of the value of the goods at the point of entry. The cost of bottling and labelling the Horlicks powder into unit bottles inside t he Calcutta Metropolitan Area would be negligible. It may be that the appellant may be entitled to ask the Assessing Officer to take that also into consideration in the case of assessment under rule 12 (1). But since the value declared by the appellant was far less than the value showed by the appellant company itself in Form V as Rs. 1, 22, 304 working out to Rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the Calcutta Metropolitan Area, it is not possible to hold that the Assessing Officer was not justified in rejecting the value declared by the appellant as Rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the "best judgment" basis as provided for in rule 12 (2) on the basis of the approximate assessable value of the goods in the Calcutta Metropolitanlearned counsel for the appellant invited our attention to this Courts decision in Commissioner of Income-Tax, West Bengal-1 v. Padamchand Ramgopal, (1) where in his investigation, the Income-Tax Officer found two insignificant mistakes in the assessees accounts for the year 1953-54. Those mistakes were (1) failure to bring into account an item of interest received and (2) incorrectness of an entry relating to the receipt of income. No mistake was found in the accounts relating to assessment years 1954-55 to 1957-58. However, the Income-Tax Officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head "interest" for each of the years as escaped income. The Tribunal accepted the additions made by the Income-Tax Officer. But this Court held that the Income-tax Officer and the Tribunal erred in holding that the additions could be made in accordance with law and it was further held that the two mistakes afforded no basis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. We think that the ratio of that decision will not apply to the facts of the present case. In Haji Lal Mohd. Biri Works, Allahabad v. The State of U.P. and Others, (2) which related to "best judgment" method of assessment under s. 18 (4) of the M.P. General Sales Tax Act, it has been held that the Assessing Authority while making "best judgment assessment" should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the Assessing Authority is his bonafide estimate and is based on a rational basis the fact that there is no good proof in respect of that estimate does not render the assessment illegal. There is no material in the present case for us to hold that the Assessing Authority had any bias against the appellant or that his estimate of the assessable value of the goods is not a bonafide estimate or that it has no rational basis. We find that the Assessing Officer had sufficient reason for not accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the "best judgment" basis is rational and based on the appellants own selling agents price list in the Calcutta Metropolitan Area.
| 0 | 6,079 | 1,311 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
that excise duty was not paid at the time of the removal of the concerned consignment from the factory at Nabha.14. According to the appellants case in the Writ Petition, when the goods arrive at the Hussenabad check-post in bulk, packed in steel drums containing 182 kgs. of Horlicks Powder each, the goods have no other value except the cost of manufacture, freight and insurance a nd only after the Horlicks powder, packed in the steel drums, enters the Calcutta Metropolitan Area the cost of bottling inputs, bottling expenses, manufactures profits are added and excise duty is paid on the total value after the g oods are put into marketable condition. It is also the appellants case in the writ Petition that the appellant never intended to sell and had never sold Horlicks powder in bulk containers in the Calcutta Metropolitan Area or elsewhere an d that respondents 2 and 4 in the Writ Petition, namely, Assistant Director (Entry Tax) and the Inspector (Entry Tax) Hussenabad Check Post, rejected the documents produced for the purposes of assessment under rule 12 (1) and wrongly resorted t o the "best judgment" method of ascertainment of the value under rule 12 (2) and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at Calcutta. It is not possible to accept the appellants contention that the Horlicks powder packed in steel drums containing 182 kgs. each had no value at the Hussenabad Check Post apart from the cost of manufacture, freight and insurance. That may be so from the point of view of the manufacture, but it cannot be the value of the goods in the Calcutta Metropolitan Area where the value should include in addition to the aforesaid items the cost of further transport into the Calcutta Market Area from the Hussenabad Check Post, excise duty if not already paid at the time of the removal of the goods from the factory at Nabha, wholesalers and retailers profits and sales-tax. Under rule 12 (1) the value declared must include cost price of the goods as given in the bill, invoice or consignment note or any other document of like nature, shipping duties where applicable, insurance, excise duty and sales-tax. It may be that the process of bottling and labelling is resorted to after the bulk consignment is received into the Calcutta Metropolitan Area for the purpose of convenience and it may also be that it may not form part of the value of the goods at the point of entry. The cost of bottling and labelling the Horlicks powder into unit bottles inside t he Calcutta Metropolitan Area would be negligible. It may be that the appellant may be entitled to ask the Assessing Officer to take that also into consideration in the case of assessment under rule 12 (1). But since the value declared by the appellant was far less than the value showed by the appellant company itself in Form V as Rs. 1, 22, 304 working out to Rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the Calcutta Metropolitan Area, it is not possible to hold that the Assessing Officer was not justified in rejecting the value declared by the appellant as Rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the "best judgment" basis as provided for in rule 12 (2) on the basis of the approximate assessable value of the goods in the Calcutta Metropolitan Area.15. The learned counsel for the appellant invited our attention to this Courts decision in Commissioner of Income-Tax, West Bengal-1 v. Padamchand Ramgopal, (1) where in his investigation, the Income-Tax Officer found two insignificant mistakes in the assessees accounts for the year 1953-54. Those mistakes were (1) failure to bring into account an item of interest received and (2) incorrectness of an entry relating to the receipt of income. No mistake was found in the accounts relating to assessment years 1954-55 to 1957-58. However, the Income-Tax Officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head "interest" for each of the years as escaped income. The Tribunal accepted the additions made by the Income-Tax Officer. But this Court held that the Income-tax Officer and the Tribunal erred in holding that the additions could be made in accordance with law and it was further held that the two mistakes afforded no basis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. We think that the ratio of that decision will not apply to the facts of the present case. In Haji Lal Mohd. Biri Works, Allahabad v. The State of U.P. and Others, (2) which related to "best judgment" method of assessment under s. 18 (4) of the M.P. General Sales Tax Act, it has been held that the Assessing Authority while making "best judgment assessment" should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the Assessing Authority is his bonafide estimate and is based on a rational basis the fact that there is no good proof in respect of that estimate does not render the assessment illegal. There is no material in the present case for us to hold that the Assessing Authority had any bias against the appellant or that his estimate of the assessable value of the goods is not a bonafide estimate or that it has no rational basis. We find that the Assessing Officer had sufficient reason for not accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the "best judgment" basis is rational and based on the appellants own selling agents price list in the Calcutta Metropolitan Area.
### Response:
0
### Explanation:
in rejecting the copy and holding that excise duty was not paid at the time of the removal of the concerned consignment from the factory atto the appellants case in the Writ Petition, when the goods arrive at the Hussenabad check-post in bulk, packed in steel drums containing 182 kgs. of Horlicks Powder each, the goods have no other value except the cost of manufacture, freight and insurance a nd only after the Horlicks powder, packed in the steel drums, enters the Calcutta Metropolitan Area the cost of bottling inputs, bottling expenses, manufactures profits are added and excise duty is paid on the total value after the g oods are put into marketable condition. It is also the appellants case in the writ Petition that the appellant never intended to sell and had never sold Horlicks powder in bulk containers in the Calcutta Metropolitan Area or elsewhere an d that respondents 2 and 4 in the Writ Petition, namely, Assistant Director (Entry Tax) and the Inspector (Entry Tax) Hussenabad Check Post, rejected the documents produced for the purposes of assessment under rule 12 (1) and wrongly resorted t o the "best judgment" method of ascertainment of the value under rule 12 (2) and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at Calcutta. It is not possible to accept the appellants contention that the Horlicks powder packed in steel drums containing 182 kgs. each had no value at the Hussenabad Check Post apart from the cost of manufacture, freight and insurance. That may be so from the point of view of the manufacture, but it cannot be the value of the goods in the Calcutta Metropolitan Area where the value should include in addition to the aforesaid items the cost of further transport into the Calcutta Market Area from the Hussenabad Check Post, excise duty if not already paid at the time of the removal of the goods from the factory at Nabha, wholesalers and retailers profits and sales-tax. Under rule 12 (1) the value declared must include cost price of the goods as given in the bill, invoice or consignment note or any other document of like nature, shipping duties where applicable, insurance, excise duty and sales-tax. It may be that the process of bottling and labelling is resorted to after the bulk consignment is received into the Calcutta Metropolitan Area for the purpose of convenience and it may also be that it may not form part of the value of the goods at the point of entry. The cost of bottling and labelling the Horlicks powder into unit bottles inside t he Calcutta Metropolitan Area would be negligible. It may be that the appellant may be entitled to ask the Assessing Officer to take that also into consideration in the case of assessment under rule 12 (1). But since the value declared by the appellant was far less than the value showed by the appellant company itself in Form V as Rs. 1, 22, 304 working out to Rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the Calcutta Metropolitan Area, it is not possible to hold that the Assessing Officer was not justified in rejecting the value declared by the appellant as Rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the "best judgment" basis as provided for in rule 12 (2) on the basis of the approximate assessable value of the goods in the Calcutta Metropolitanlearned counsel for the appellant invited our attention to this Courts decision in Commissioner of Income-Tax, West Bengal-1 v. Padamchand Ramgopal, (1) where in his investigation, the Income-Tax Officer found two insignificant mistakes in the assessees accounts for the year 1953-54. Those mistakes were (1) failure to bring into account an item of interest received and (2) incorrectness of an entry relating to the receipt of income. No mistake was found in the accounts relating to assessment years 1954-55 to 1957-58. However, the Income-Tax Officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head "interest" for each of the years as escaped income. The Tribunal accepted the additions made by the Income-Tax Officer. But this Court held that the Income-tax Officer and the Tribunal erred in holding that the additions could be made in accordance with law and it was further held that the two mistakes afforded no basis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. We think that the ratio of that decision will not apply to the facts of the present case. In Haji Lal Mohd. Biri Works, Allahabad v. The State of U.P. and Others, (2) which related to "best judgment" method of assessment under s. 18 (4) of the M.P. General Sales Tax Act, it has been held that the Assessing Authority while making "best judgment assessment" should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the Assessing Authority is his bonafide estimate and is based on a rational basis the fact that there is no good proof in respect of that estimate does not render the assessment illegal. There is no material in the present case for us to hold that the Assessing Authority had any bias against the appellant or that his estimate of the assessable value of the goods is not a bonafide estimate or that it has no rational basis. We find that the Assessing Officer had sufficient reason for not accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the "best judgment" basis is rational and based on the appellants own selling agents price list in the Calcutta Metropolitan Area.
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Dharam Das and Ors. Vs. The State of Punjab and Ors.
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by it that the provisions of Sub-section (4) of Section 3 and Sub-section (5) of Section 7 do not suffer from any Constitutional or other legal impediment. It was, however, pointed out by the High Court that the above plea was not taken in any of the Writ petitions except that in the petition filed by Dharam Das. 27. There seems to have been a divergence of opinion in the Punjab & Haryana High Court in respect of personal notice to be served under Sub-section (4) of Section 7 and even though it was served subsequent to g the notification under Sub-section (5) of Section 7 it was none-the-less determined by the rule of conclusive proof. But as the Full Bench of the High Court explained, and we concur with that explanation, once the provision of conclusive presumption under Sub-section (5) of Section 7 was held to be valid and Constitutional that question could not be allowed to be agitated or rebutted as that would militate against the conclusive nature of the statutory presumption. Nor having regard c to the object of the Act can that provision be considered to be unreasonable as these are only preliminary steps necessary for holding an enquiry which enquiry forms an essential part to the determination of the lis. To take advantage of preliminary steps to protract litigation is itself unreasonable. The presumption that the authorities enjoined by the Act to take certain steps will do so has been an irrebuttable presumption and if that does not affect substantial justice being done between the parties to the lis, no question of unreasonableness will arise. It may also be pointed out that before us it was contended that no notice was served on Bhag Singh. The Respondents Advocate, however, wanted to produce the notice on winch Bhag Singh had signed in token of his having received it, but that is a matter which we cannot entertain in this appeal. 28. It is also argued in Dharam Dass case that the right conferred by Section 8 of the Act on any hereditary office-holder confers that right only on a person who could trace his office as a hereditary officeholder from an unbroken line of Gurus to Chela and if there is any hiatus in that, such as for instance, the death of a Guru before he nominates his Chela or where a Guru marries and is disqualified and another person is appointed as a Mahant that person is not given the right to challenge the notification under Sub-section (3) of Section 7. This contention, in our view, is unjustified for the simple reason that hereditary office has been defined in Clause (iv) of Sub-section (4) of Section 2 as meaning an office the succession to which before the first day of January, 1920, or, in the case of the extended territories, before the 1st day of November, 1956, as the case may be, devolved, according to hereditary right or by nomination by the office-holder for the time being and hereditary office-holder means the holder of a hereditary office. If a hereditary office-holder within the meaning of Clause (iv) of Section 2(4) cannot be found then Section 8 provides for a challenge to the notification under Sub-section (3) of Section 7 by any twenty or more worshippers of the Gurdwara, each of whom is more than twenty-one years of age and was on the commencement of the Act a resident of a police station area in which the gurdwara is situated. Surely, if as is contended the Bhekh of a Sampradaya is entitled to nominate a successor where a Mahant could not nominate his successor, we presume that the Bhekh will have more than twenty worshippers who could challenge the notification. We cannot assume that the Bhekh which nominated the Mahant would be of less than twenty worshippers. If it had lesser number of worshippers than 20, it could hardly be called a Bhekh. There is, in our view, nothing unreasonable or discriminatory in this provision. As to whether a person is a hereditary office-holder at the time of the presentation of the petition under Section 8, will always be a case for the Tribunal to determine having regard to well-established rules of evidence by which Courts determine these matters. The assumption that if there is a break before 100 years of a succession between a Guru and Chela, the present incumbent will not be considered as a hereditary office-holder is purely hypothetical and this Court will not venture to express its view on such an assumption. It is for the Tribunal to apply the law for determining as to whether the person who challenges the notification is a hereditary office-holder and has locus standi to do so. 29. In Civil Appeal No. 1222 of 1969 the filing of the petition within ninety days prescribed under Section 8 is challenged as unreasonable. The period of limitation is by its very nature to some extent arbitrary but it has never been urged that the period prescribed in the Limitation Act is violative of Article 14 of the. Constitution, nor if such a position is taken can it be sustained. It is an elementary principle of justice that a person having a right should not sleep over it and must come forward as quickly as possible. The contingency that if a Mahant dies within a period of 90 days after the publication of the notification under Sub-section (3) of Section 7 without nominating his successor there would be no time for the Bhekh to nominate the successor to the office or for the Bhekh to call a meeting to elect a successor of properties attached to the Gurdwara was forwarded, a declaration do not make the provision invalid. Ninety days is sufficient time for twenty or more worshippers to get together to challenge the notification which is designed to declare the gurdwara in which they are worshipping to be a Sikh Gurdwara and which offends their belief and worship.
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0[ds]The full Bench of the Punjab & Harayana High Court in its detailed judgment has considered several aspects in the light of the contentions advanced before it which contentions have been repeated before us. Before we examine the impugned provisions, it is necessary to state that in order to remedy a situation arising out of certain historical landmarks of Sikh struggle to retain their shrines which had come into the possession of persons subscribing to non-Sikh faiths, the Act was passed. The Sikhs believe in the ten Gurus-the last of whom was Guru Gobind Singh. They further believe that there is no other Guru after Guru Gobind Singh who enjoined on his followers that after him they, should consider Guru Granth Sahib as the Guru. They do not subscribe to idol worship and polytheism, nor do they have any Samadhi in their shrines. The teaching of Sikhs was against asceticism. They believe in Guru Granth Sahib, which is a Rosary of sacred poems, exhortations, etc. During the time of the Sikh Gurus, the Gurdwaras were under their direct supervision and control or under their Masends or missionary agents. After the death of Guru Gobind Singh the Panth is recognised as the corporate representative or the Guru on earth and thereafter they were managed by the Panth through their Granthis and other sewadars who were under direct supervision of the local Sangat or congregation. During Maharaja Ranjit Singhs time Sikhism became the religion of the State and large estates and Jagirs were granted to the Gurdwaras, apart from the Jagirs which had been earlier granted during the Mugal period.The position of the Gurdwaras changed during British regime. The (Mahants who were in charge of the Sikh Gurdwaras could either be a Sikh Mahant or Udasi Mahant.It may here be stated that the Udasis were, not Sikhs. While the teachings of Sikhs were against asceticism and were opposed to Hindu rites, the Udasis though using the same sacred writings as the Sikhs, kept up much more of the old Hindu practices, followed asceticism, were given to the veneration of Samadhis or Tombs and continue the Hindu rites concerning birth, marriage and Shradh. (See Hem Singh v. Basant Das 63 I.A. 180, 201 Though there was no reconciliation between the Sikhs and Udasis, it did not matter if the Mahant of a Sikh Gurdwara was not a Sikh Mahant because the Panth or Sangat exercised control over the Gurdwaras. After the death of Maharaja Ranjit Singh when the power of the Sikhs had waned and they were disorganised and dejected, the non-Sikh Mahants asserted their control and denied to the Panth or the Sangat rights over those Gurdwaras. After the Sikhs had recovered from their frustration caused by the defeat of the Sikh Rajas they began to assert their rights by filing suits and embarking on litigation for the recovery of their holy shrines.16. A canvass of the provisions of the Act presents four situations- (i) where the Legislature in its judgment considers a Gurdwara to be a Sikh Gurdwara and places it in Sen. 1 to which the provisions, of Sections 3 to 6 are applicable; (ii) in respect of the institutions contained in Sch. II no petition under Section 7 can be entertained unless the institution is deemed to be excluded from specification in Sch. I under the provisions of Section 4 by a notification made after the expiry of ninety days from the commencement of the Act, or, in the case of the extended territories, after the expiry of one hundred and eighty days from the commencement of the Amending Act; (iii) in respect of other Gurdwaras fifty or more Sikh worshippers of a Gurdwara fulfilling the requirements of Sub-section (1) of Section 7 can pray to have the Gurdwara declared to be a Sikh Gurdwara and thereafter the provisions of Sections 7 to 11 would become relevant. That claim can be forwarded by the State Government to a Tribunal under Section 14 and enquired into by it under Section 16. If the Tribunal finds that the Gurdwara is not a Sikh Gurdwara subject to its finding being confirmed by the High Court in appeal, it shall cease in have any jurisdiction over it thereafter, subject of course to any claim made in accordance with the provisions of Section 8 praying for the restoration of the hereditary office-holder or a person who would have succeeded to such office-holder under the system of management prevailing before the first day of January, 1920, or, in the case of the extended territories, before the 1st day of November, 1956, in respect of which the Tribunal shall continue to have jurisdiction. On the other hand, if the Tribunal came to the conclusion that it was a Sikh Gurdwara with respect to which either there was no appeal to the High Court or the High Court had confirmed the finding of the Tribunal, that fact would be intimated to the State Government and the State Government shall, as soon as may be, publish a notification declaring such gurdwara to be a Sikh Gurdwara, and the provisions of Part III shall apply thereto with effect from the date of the publication of such notifications (vide Section 17); and (iv) where after the expiry of one year from the commencement of the Act or in the case of the extended territories from the commencement of the Amending Act as the case may be or of such further period as the State Government may have fixed under the provisions of Sub-section (1) of Section 7 two or more persons having interest in any gurdwara in respect of which no notification declaring the gurdwara to be a Sikh Gurdwara has been published under the provisions of the Act may, with the consent of the Deputy Commissioner of the district in which such Gurdwara is situated, institute a suit, whether contentious or not, in the principal court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the gurdwara is situated praying for any of the reliefs specified in Section 92 of the Code H of Civil Procedure, 1908 and may in such suit pray that the pro-visions of Part III be applied to such gurdwara: (see Section 38). Subsections (2) to (6) of Section 38 prescribe the procedure for the inquiry.17. In so far as Lachman Dasss appeal is concerned the Gurdwara Panjaur Padshahi Pehli was included as item 249 in Sch. I by Section 50 of the Punjab Act I of 1959. It is contended that the appellant has been denied a right of hearing by reason of which he has been precluded from challenging that the Gurdwara is not a Sikh Gurdwara but a Udasi Gurdwara and that the provisions of the Act are arbitrary, unreasonable and offends his fundamental rights under Articles 14,19. It is true that a denial of a right to be heard as expressed in the maxim audi alteram partem whether by legislative or executive action or in any other manner is abhorrent to a civilised society; it is destructive of the elementary principles of justice according to which every citizen has to be judged and is contrary to the cherished notions of the rule of law which is the sheet-anchor and the umbilicus of the democratic system of Government embodied in our Constitution.This had reference to Section 148-B which added to the Board constituted under Section 43 additional members till the next election of the new board under Section 43-A. Section 148-C made provisions in respect of employees of the Interim Gurdwara Board, Patiala and the local committee functioning under it. Section 148-E made special provisions regarding the assets and liabilities of Interim Gurdwara Board, Patiala. It provided that all lands and buildings (together with all interests of whatsoever nature or kind therein) belonging to the Interim Gurdwara Board, all assets, including stores, articles, and movable properties belonging to the Interim Gurdwara Board immediately before such commencement and utilised for or in connection with the Interim Gurdwara Board shall pass to and vest in the Board. Similarly Clauses (c), (d) and (e) made provision for debts, rents and suits etc. Section 148-F made provision for removal of difficulties/ In this way the Amending Act gave continuity to the vesting of the Gurdwara Pinjore Padhshahi Pehli in the Interim Gurdwara Board and to manage it even after_ the Amending Act, without creating any kind of hiatus in the control and management of such Gurdwaras. The Pinjore Gurdwara was declared to be a Sikh Gurdwara long prior to the Constitution and was managed by the Interim Gurdwara Board constituted by the Firman which was the law of the Pepsu State having the force of law even after the Constitution by virtue of Article 372 and continued to be law till it was repealed and substituted by a law made by a competent Legislature. The appellant had no manner of right during the entire period from 1946 till long after the Amending Act nor did he even assert his right thereto since then until the filing of the Writ Petition and cannot be allowed to challenge now the lactum that the Gurdwara is a Sikh Gurdwara.22. In our view these contentions have no force and must be rejected. The allegation of the appellant in his Writ petition paragraph- 9(d) was that the State Government when preparing the two schedules did not make any enquiry, never served any notice on the appellant asking him to explain as to whether it was an Udasi institution or a Sikh Gurdwara, and arbitrarily included Gurdwara Panjaur sahib, in Udasi institution, in Sch. I which is against the principles of natural justice. In reply thereto in paragraph 9(d) respondents 1 and 3 denied these allegations and averred that the Institution was a Sikh Gurdwara and was under the management of the Interim Gurdwara Board in the erstwhile Pepsu territory. Respondent 2 also while admitting that the appellant was in possession of the Gurdwara and the property attached therewith said that possession was on behalf of the said Gurdwara. Respondent 2 further, while emphatically denying that the Gurdwara was an Udasi institution, asserted that the institution was a Sikh Gurdwara. Annexure A-I was relied upon by the appellant to show that nothing had been stated therein that the Gurdwara was under the management of the Interim Gurdwara Board. This annexure related to an entry in last Jamabandi for the year 1954-55 in which Column I showed the number of the Khata and in the second column name of the owner was described as Gurdwara Sahib Panjore Malik Be ehatman, Mahant Lachhman Das Chela Mahant Isher Dass caste Udasi, resident of village Panjore, Mohtmim. In the third column the name of the cultivator was given. There is nothing in this entry which shows that the Gurdwara was an Udasi Gurdwara or the Lachhman Dass was not working under the management of the Interim Gurdwara Board. The words Be chetmam and Mohtmim clearly show that he was only managing it. This is not inconsistent with the allegations that many of the Sikh Gurdwaras were managed by Udasis nor is it inconsistent with the fact that under the Firmans the Interim Gurdwara Board which was in management of the Gurdwara could get the affairs of the Gurdwara looked after by others under their supervision. For this reason perhaps originally the vires of the provisions of the Act was not specifically agitated in the original petition. It was only subsequently that an attempt was made to have amended. Be that as it may it cannot be said that the question of the management of the impugned Gurdwaras was not raised, la paragraph 2 of the affidavit of Kehar Singh Mann the deponent stated that the Sikh Gurdwaras in the State of Pepsu fell into three categories-(1) Gurdwaras owned and managed by the Government; (2) Gurdwaras which were managed by the Interim Gurdwara Board established by the Ruler of the erstwhile State of Patiala by order of the Ijlas-i-khas December, 1946; and (3) Gurdwaras which were privately managed by the Local Committees. The Government by notification No. 48 Gurdwaras dated February 1, 1957, constituted a committee consisting of M.L.As and M.L.Cs to submit its report for suitable amendments being made in the Act covering the Gurdwaras situated in Pepsu and after obtaining the relevant data the Committee submitted its report on September 14, 1957 which is R-I a copy of which was attached to the affidavit of Kehar Singh Mann. These recommendations of the Committee were accepted and the Amending Act was introduced. The full Bench in its judgment referred to the basis on which certain historical Sikh Gurdwaras of erstwhile Pepsu area were included in Sch. I and others not so included. According to the Advisory Committees report;All the Gurdwaras managed by Government and the Interim Gurdwara Board should not be included in Schedule I. While recommending the inclusion of Gurdwaras mentioned in the attached lists, the Committee has given due consideration to the religious and historical importance of the Gurdwaras and their economy. It was felt that the inclusion of all the Gurdwaras managed by the Interim Gurdwara Board in Schedule I and Section 85 of the Act, would be conducive to inconvenience and complications in the management of some of the Gurdwaras. The Committee has, therefore, not recommended the inclusion of some of the Gurdwaras in Schedule I.The full Bench also further stated that the appellant has not claimed himself to be the owner of the institution divined and described in item No. 249 of the Sch. I and therefore has no locus standi to claim that the said institution should have been included in that Schedule.23. It is, therefore, clear that the question whether Gurdwara Pinjore Padhshahi Pehli was a Sikh Gurdwara or was an Udasi Gurdwara had been determined as early as 1946 by the Firman of the Maharaja of Patiala. The fact that the appellant alleges that he was in possession of the Gurdwara is of little moment because if the law vested the management in the Interim Gurdwara Board the possession of the appellant could either be permissible or hostile. In either case the status of the Gurdwara as a Sikh Gurdwara had been determined before the Constitution and since it was a pre-Constitution law which declared so the appellant cannot challenge it on the ground of violation of his fundamental rights. Even if the appellant continued to be in possession he has not acquired a right of management when once that right was vested in another body. That Firman of an erstwhile Ruler of a Princely State was law and continued to be law till repealed or substituted by a competent Legislature has been concluded by the decisions of this Court in Ameerunnissa Begum and Ors. v. Mahaboob Begum and Ors. [1953]4SCR404 anti State of Rajasthan and Ors. v. Shri Sajjanlal Panjawat and Ors. [1974] 1 S.C.R. 500 at p. 511. In view of the legal position an attempt was made to describe the Firman of the Maharaja of Patiala referred to above as an administrative order not having the force of law. With this submission we are unable to agree. A glance at the Firman leaves no manner of doubt that it vested the management and possession of the Gurdwaras in a body created by it, with a Constitution and Membership quorum etc. It could only be administrative if the Gurdwaras in respect of which the management was vested were already vested in the State but that will be fatal to the case of the appellants. The very fact that pending a comprehensive law the Maharaja was issuing the Finnan itself shows that it is a law. The pleadings clearly raised the question of the locus standi of the appellant to assert that the Gurdwara was not a Sikh Gurdwara and it was clearly asserted that the possession of the appellant was on behalf of the said Gurdwara which is not inconsistent with the fact that the possession and management of it was vested in the Interim Gurdwara Board. It was contended by the learned Advocate for the appellant that if the pre-Constitution law takes away rights for an interim period then the rights existed after the interim period and is subject to the Constitution. But even if this proposition is admitted, and it is not necessary to express our view, the assumption on which it is based is invalid. No doubt the Maharaja of Patiala envisaged a comprehensive law to replace his Firmans but by that time the State of Patiala was merged and the law embodied by the Firmans which was continued to be the law after the merger was replaced by the Amending Act which provided for the Interim Gurdwara Board being in possession and management during the transition period. In Sri Jagadguru Kari Basava Rajendraswami of Gavimittt v. Commissioner of Hindu Religious Charitable Endowments, Hyderabad [1964]8SCR252 a scheme had been framed before the Constitution and Section 103(d) of the Madras Hindu Religious and Charitable Endowments Act, 1951, properly construed, gave an operative force to the earlier schemes framed under the Madras Act 2 of 1_973 as though they were framed under the Act 19 of 1951. It was not intended by this section that those schemes must be examined and retrained in the light of the relevant provisions of the Act. In these circumstances it was held that although the scheme in question had not been completely implemented before the Constitution, that was no ground for examining its provision in the light of Article 19 of the Constitution. The fundamental rights conferred by the Constitution are not retrospective in operation and the observations made by this Court in Seth Shanti Sarup v. Union of India AIR1955SC624 were not applicable to that case.24. The complaint in the appeals relating to Sell. I Gurdwaras is that the mere publication of a declaration of a consolidated list under Sub-section (2) of Section 3 is by virtue of Sub-section (4) of Section 3 conclusive proof of the fact that the application made under Sub-section (1) of Section 3 was in fact made by a Sikh or any present office holder of the Gurdwara in question specified in Sch. I of the Act that the notification and the consolidated list had been published in the prescribed manner at the headquarters of the District etc. and the fact that the State Government sent by registered post a notice of the claim etc. to each of the persons named in the list as being in possession of any such right etc. i.e. of the requisites of Sub-sections (1), (2) and (3) of Section 3. The appellant Dharam Das further complains that Sub-section (5) of Section 7 bars an inquiry into the fact whether the persons who made the application under Sub-section (1) of Section 7 were in fact fifty or more or not, whether such persons were in fact Sikh worshippers of the Gurdwaras or not, and whether each one of them was more than twenty-one years of age or not at the relevant time. The publication of this notification is to be conclusive proof of the compliance with the requirements of Sub-sections (1) to (4) of Section 7. These provisions have been challenged as offending Article 14 because the impugned presumptions have the effect of taking away the rights which are available to the parties in con testing their suits under Section 38 thus driving a wedge of invidious discrimination between cases tried under Part I of the Act on the one hand and those tried under Part II of the Act (Section 38) on the other; that the said presumptions are pieces of substantive law and not merely rules of evidence; and that the presumptions in question have the effect of taking away certain defences which are normally open to a litigant in an ordinary legal proceedings, i.e. the plea as to g the locus standi of claimant either under Sub-section (1) of Section 3 or under Sub-section (1) of Section 7 by pleading and proving that such claimants did not possess the requisite qualifications entitling them to make the claim in dispute. These very contentions were urged before the High Court and negatived by it on a detailed consideration by reference to the case law.25. It must not be forgotten that the whole object of the Act was to reduce the chances of protracted litigation in a matter involving the religious sentiments of a large section of a sensitive people proud of their heritage. The long history of the struggle of the Sikhs to get back their religious shrines to which reference has been made in the Sikh historical books make it amply clear that the intensity of the struggle, sacrifice and shedding of blood had made the Government of the day realize that a speedy remedy should be devised and accordingly the procedures prescribed in Sections 3 and 7 have been innovated by the Act. The provision of law which shuts out further enquiry and makes a notification in respect of certain preliminary steps conclusive, does not involve the exercise of any judicial function. It has been so held in Municipal Board, Hapur v. Raghuvendra Kripal and Ors. [1966]1SCR650 . Though this case and the case of Izhor Ahmad Khan and Ors. v. Union of India and Ors. [1962] Su 3 S.C.R. 235 had been cited before the High Court as supporting the contention that Sub-section (4) of Section 3 and Sub-section (5) of Section 7 are liable to be struck down as they are equivalent to an ex-parte judgment of the legislature given against the petitions on the relevant point, the High Court on an examination of this case held that the ratio supported a contrary conclusion. In Izhar Ahmed Khans case Sub-section (2) of Section 9 of the Citizenship Act provided that if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in that behalf. Under the above provision Rule 3 of Sch; 111 of the Citizenship Rules, 1956 was framed and it was this rule that was challenged. The Court while up-holding it examined the question as to when it could be said that the conclusive presumption prescribed by the statute fell within the ambit of the rules of evidence and when it could not be so said. If rebuttable presumptions are within the domain of the law of evidence, irrebuttable presumptions would also be within the domain of that branch of the law. Even though the rule provided for a conclusive presumption, the majority held that it prescribed a rule of evidence. That was a case of a rule made under a statutory provision but Sub-section (4) of Section 3 and Sub-section (5) of Section 7 of the Act are rules of evidence prescribed by the Legislature which is competent to provide, for irrebuttable and conclusive presumptions not only as mere rules of evidence but even as substantive pieces of law so long as the relevant provisions are within the legislative competence of the Legislature and are not otherwise unConstitutional.26. In Municipal Board, Hapurs case also the majority decision of this Court held that when a Legislature says that an. enquiry into the truth or otherwise of a fact shall stop at a given stage and that fact is taken to be conclusively proved, no question of discrimination would arise. In fact that case specifically held that the provisions of law which shuts out. further enquiry and makes a notification in respect of certain preliminary steps conclusive, does not involve the exercise of any judicial function. It was pointed out that the Evidence Act is full of such fictions. In fact under Sub-section (2) of Section 3 of the Act it is on the receipt of a list duly forwarded under the provisions of Sub-section (1) that the State Government is expected to publish a notification, the publication of which is made a conclusive proof of certain facts by Sub-section (4) of Section 3. As pointed out by the High Court the use of the expression duly forwarded in relation to an application under Sub-section (1) of Section 3 shows that the State Government is expected to satisfy itself before the issue of a notification under Sub-section (2) of Section 3, that the application in question is a proper application under Sub-section (1), and has been duly forwarded, which implies that the application has been made by a Sikh or by the present office-holder of a Gurdwara specified in Sch. I, and that effect it has fulfilled the requirements of Sub-section (1) of Section 3. We agreement with this conclusion of the High Court for the reasons given by it that the provisions of Sub-section (4) of Section 3 and Sub-section (5) of Section 7 do not suffer from any Constitutional or other legal impediment. It was, however, pointed out by the High Court that the above plea was not taken in any of the Writ petitions except that in the petition filed by Dharam Das.27. There seems to have been a divergence of opinion in the Punjab & Haryana High Court in respect of personal notice to be served under Sub-section (4) of Section 7 and even though it was served subsequent to g the notification under Sub-section (5) of Section 7 it was none-the-less determined by the rule of conclusive proof. But as the Full Bench of the High Court explained, and we concur with that explanation, once the provision of conclusive presumption under Sub-section (5) of Section 7 was held to be valid and Constitutional that question could not be allowed to be agitated or rebutted as that would militate against the conclusive nature of the statutory presumption. Nor having regard c to the object of the Act can that provision be considered to be unreasonable as these are only preliminary steps necessary for holding an enquiry which enquiry forms an essential part to the determination of the lis. To take advantage of preliminary steps to protract litigation is itself unreasonable. The presumption that the authorities enjoined by the Act to take certain steps will do so has been an irrebuttable presumption and if that does not affect substantial justice being done between the parties to the lis, no question of unreasonableness will arise. It may also be pointed out that before us it was contended that no notice was served on Bhag Singh. The Respondents Advocate, however, wanted to produce the notice on winch Bhag Singh had signed in token of his having received it, but that is a matter which we cannot entertain in this appeal.This contention, in our view, is unjustified for the simple reason that hereditary office has been defined in Clause (iv) of Sub-section (4) of Section 2 as meaning an office the succession to which before the first day of January, 1920, or, in the case of the extended territories, before the 1st day of November, 1956, as the case may be, devolved, according to hereditary right or by nomination by the office-holder for the time being and hereditary office-holder means the holder of a hereditary office. If a hereditary office-holder within the meaning of Clause (iv) of Section 2(4) cannot be found then Section 8 provides for a challenge to the notification under Sub-section (3) of Section 7 by any twenty or more worshippers of the Gurdwara, each of whom is more than twenty-one years of age and was on the commencement of the Act a resident of a police station area in which the gurdwara is situated. Surely, if as is contended the Bhekh of a Sampradaya is entitled to nominate a successor where a Mahant could not nominate his successor, we presume that the Bhekh will have more than twenty worshippers who could challenge the notification. We cannot assume that the Bhekh which nominated the Mahant would be of less than twenty worshippers. If it had lesser number of worshippers than 20, it could hardly be called a Bhekh. There is, in our view, nothing unreasonable or discriminatory in this provision. As to whether a person is a hereditary office-holder at the time of the presentation of the petition under Section 8, will always be a case for the Tribunal to determine having regard to well-established rules of evidence by which Courts determine these matters. The assumption that if there is a break before 100 years of a succession between a Guru and Chela, the present incumbent will not be considered as a hereditary office-holder is purely hypothetical and this Court will not venture to express its view on such an assumption. It is for the Tribunal to apply the law for determining as to whether the person who challenges the notification is a hereditary office-holder and has locus standi to do so.29. In Civil Appeal No. 1222 of 1969 the filing of the petition within ninety days prescribed under Section 8 is challenged as unreasonable. The period of limitation is by its very nature to some extent arbitrary but it has never been urged that the period prescribed in the Limitation Act is violative of Article 14 of the. Constitution, nor if such a position is taken can it be sustained. It is an elementary principle of justice that a person having a right should not sleep over it and must come forward as quickly as possible. The contingency that if a Mahant dies within a period of 90 days after the publication of the notification under Sub-section (3) of Section 7 without nominating his successor there would be no time for the Bhekh to nominate the successor to the office or for the Bhekh to call a meeting to elect a successor of properties attached to the Gurdwara was forwarded, a declaration do not make the provision invalid. Ninety days is sufficient time for twenty or more worshippers to get together to challenge the notification which is designed to declare the gurdwara in which they are worshipping to be a Sikh Gurdwara and which offends their belief and worship.
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by it that the provisions of Sub-section (4) of Section 3 and Sub-section (5) of Section 7 do not suffer from any Constitutional or other legal impediment. It was, however, pointed out by the High Court that the above plea was not taken in any of the Writ petitions except that in the petition filed by Dharam Das. 27. There seems to have been a divergence of opinion in the Punjab & Haryana High Court in respect of personal notice to be served under Sub-section (4) of Section 7 and even though it was served subsequent to g the notification under Sub-section (5) of Section 7 it was none-the-less determined by the rule of conclusive proof. But as the Full Bench of the High Court explained, and we concur with that explanation, once the provision of conclusive presumption under Sub-section (5) of Section 7 was held to be valid and Constitutional that question could not be allowed to be agitated or rebutted as that would militate against the conclusive nature of the statutory presumption. Nor having regard c to the object of the Act can that provision be considered to be unreasonable as these are only preliminary steps necessary for holding an enquiry which enquiry forms an essential part to the determination of the lis. To take advantage of preliminary steps to protract litigation is itself unreasonable. The presumption that the authorities enjoined by the Act to take certain steps will do so has been an irrebuttable presumption and if that does not affect substantial justice being done between the parties to the lis, no question of unreasonableness will arise. It may also be pointed out that before us it was contended that no notice was served on Bhag Singh. The Respondents Advocate, however, wanted to produce the notice on winch Bhag Singh had signed in token of his having received it, but that is a matter which we cannot entertain in this appeal. 28. It is also argued in Dharam Dass case that the right conferred by Section 8 of the Act on any hereditary office-holder confers that right only on a person who could trace his office as a hereditary officeholder from an unbroken line of Gurus to Chela and if there is any hiatus in that, such as for instance, the death of a Guru before he nominates his Chela or where a Guru marries and is disqualified and another person is appointed as a Mahant that person is not given the right to challenge the notification under Sub-section (3) of Section 7. This contention, in our view, is unjustified for the simple reason that hereditary office has been defined in Clause (iv) of Sub-section (4) of Section 2 as meaning an office the succession to which before the first day of January, 1920, or, in the case of the extended territories, before the 1st day of November, 1956, as the case may be, devolved, according to hereditary right or by nomination by the office-holder for the time being and hereditary office-holder means the holder of a hereditary office. If a hereditary office-holder within the meaning of Clause (iv) of Section 2(4) cannot be found then Section 8 provides for a challenge to the notification under Sub-section (3) of Section 7 by any twenty or more worshippers of the Gurdwara, each of whom is more than twenty-one years of age and was on the commencement of the Act a resident of a police station area in which the gurdwara is situated. Surely, if as is contended the Bhekh of a Sampradaya is entitled to nominate a successor where a Mahant could not nominate his successor, we presume that the Bhekh will have more than twenty worshippers who could challenge the notification. We cannot assume that the Bhekh which nominated the Mahant would be of less than twenty worshippers. If it had lesser number of worshippers than 20, it could hardly be called a Bhekh. There is, in our view, nothing unreasonable or discriminatory in this provision. As to whether a person is a hereditary office-holder at the time of the presentation of the petition under Section 8, will always be a case for the Tribunal to determine having regard to well-established rules of evidence by which Courts determine these matters. The assumption that if there is a break before 100 years of a succession between a Guru and Chela, the present incumbent will not be considered as a hereditary office-holder is purely hypothetical and this Court will not venture to express its view on such an assumption. It is for the Tribunal to apply the law for determining as to whether the person who challenges the notification is a hereditary office-holder and has locus standi to do so. 29. In Civil Appeal No. 1222 of 1969 the filing of the petition within ninety days prescribed under Section 8 is challenged as unreasonable. The period of limitation is by its very nature to some extent arbitrary but it has never been urged that the period prescribed in the Limitation Act is violative of Article 14 of the. Constitution, nor if such a position is taken can it be sustained. It is an elementary principle of justice that a person having a right should not sleep over it and must come forward as quickly as possible. The contingency that if a Mahant dies within a period of 90 days after the publication of the notification under Sub-section (3) of Section 7 without nominating his successor there would be no time for the Bhekh to nominate the successor to the office or for the Bhekh to call a meeting to elect a successor of properties attached to the Gurdwara was forwarded, a declaration do not make the provision invalid. Ninety days is sufficient time for twenty or more worshippers to get together to challenge the notification which is designed to declare the gurdwara in which they are worshipping to be a Sikh Gurdwara and which offends their belief and worship.
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of the expression duly forwarded in relation to an application under Sub-section (1) of Section 3 shows that the State Government is expected to satisfy itself before the issue of a notification under Sub-section (2) of Section 3, that the application in question is a proper application under Sub-section (1), and has been duly forwarded, which implies that the application has been made by a Sikh or by the present office-holder of a Gurdwara specified in Sch. I, and that effect it has fulfilled the requirements of Sub-section (1) of Section 3. We agreement with this conclusion of the High Court for the reasons given by it that the provisions of Sub-section (4) of Section 3 and Sub-section (5) of Section 7 do not suffer from any Constitutional or other legal impediment. It was, however, pointed out by the High Court that the above plea was not taken in any of the Writ petitions except that in the petition filed by Dharam Das.27. There seems to have been a divergence of opinion in the Punjab & Haryana High Court in respect of personal notice to be served under Sub-section (4) of Section 7 and even though it was served subsequent to g the notification under Sub-section (5) of Section 7 it was none-the-less determined by the rule of conclusive proof. But as the Full Bench of the High Court explained, and we concur with that explanation, once the provision of conclusive presumption under Sub-section (5) of Section 7 was held to be valid and Constitutional that question could not be allowed to be agitated or rebutted as that would militate against the conclusive nature of the statutory presumption. Nor having regard c to the object of the Act can that provision be considered to be unreasonable as these are only preliminary steps necessary for holding an enquiry which enquiry forms an essential part to the determination of the lis. To take advantage of preliminary steps to protract litigation is itself unreasonable. The presumption that the authorities enjoined by the Act to take certain steps will do so has been an irrebuttable presumption and if that does not affect substantial justice being done between the parties to the lis, no question of unreasonableness will arise. It may also be pointed out that before us it was contended that no notice was served on Bhag Singh. The Respondents Advocate, however, wanted to produce the notice on winch Bhag Singh had signed in token of his having received it, but that is a matter which we cannot entertain in this appeal.This contention, in our view, is unjustified for the simple reason that hereditary office has been defined in Clause (iv) of Sub-section (4) of Section 2 as meaning an office the succession to which before the first day of January, 1920, or, in the case of the extended territories, before the 1st day of November, 1956, as the case may be, devolved, according to hereditary right or by nomination by the office-holder for the time being and hereditary office-holder means the holder of a hereditary office. If a hereditary office-holder within the meaning of Clause (iv) of Section 2(4) cannot be found then Section 8 provides for a challenge to the notification under Sub-section (3) of Section 7 by any twenty or more worshippers of the Gurdwara, each of whom is more than twenty-one years of age and was on the commencement of the Act a resident of a police station area in which the gurdwara is situated. Surely, if as is contended the Bhekh of a Sampradaya is entitled to nominate a successor where a Mahant could not nominate his successor, we presume that the Bhekh will have more than twenty worshippers who could challenge the notification. We cannot assume that the Bhekh which nominated the Mahant would be of less than twenty worshippers. If it had lesser number of worshippers than 20, it could hardly be called a Bhekh. There is, in our view, nothing unreasonable or discriminatory in this provision. As to whether a person is a hereditary office-holder at the time of the presentation of the petition under Section 8, will always be a case for the Tribunal to determine having regard to well-established rules of evidence by which Courts determine these matters. The assumption that if there is a break before 100 years of a succession between a Guru and Chela, the present incumbent will not be considered as a hereditary office-holder is purely hypothetical and this Court will not venture to express its view on such an assumption. It is for the Tribunal to apply the law for determining as to whether the person who challenges the notification is a hereditary office-holder and has locus standi to do so.29. In Civil Appeal No. 1222 of 1969 the filing of the petition within ninety days prescribed under Section 8 is challenged as unreasonable. The period of limitation is by its very nature to some extent arbitrary but it has never been urged that the period prescribed in the Limitation Act is violative of Article 14 of the. Constitution, nor if such a position is taken can it be sustained. It is an elementary principle of justice that a person having a right should not sleep over it and must come forward as quickly as possible. The contingency that if a Mahant dies within a period of 90 days after the publication of the notification under Sub-section (3) of Section 7 without nominating his successor there would be no time for the Bhekh to nominate the successor to the office or for the Bhekh to call a meeting to elect a successor of properties attached to the Gurdwara was forwarded, a declaration do not make the provision invalid. Ninety days is sufficient time for twenty or more worshippers to get together to challenge the notification which is designed to declare the gurdwara in which they are worshipping to be a Sikh Gurdwara and which offends their belief and worship.
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AMWAY INDIA ENTERPRISES PVT. LTD Vs. RAVINDRANATH RAO SINDHIA & ANR
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It is clear, as has been held by the judgment [L&T Ltd v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay, and which is binding inter-partes, that it is not open for the petitioner to rely upon their status as independent entities while dealing with the respondent and they will have to deal with the respondent as a Consortium only. 14. This being the case, it is clear that the unincorporated association referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay. xxx xxx xxx 18. This being the case, coupled with the fact, as correctly argued by Shri Divan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the consortium agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation. 14. This case is distinguishable on facts, inasmuch as a final judgment between the parties made it clear that it would not be open for the consortium to rely upon their status as independent entities while dealing with MMRDA. This being the case, the consortium was held to be an association of persons falling under Section 2(1)(f)(iii), and that since the lead member is to lead arbitral proceedings, the central management and control of the consortium being exercised by Larsen and Toubro in India, it was held that Section 2(1)(f)(iii) would not be attracted on the facts of that case. 15. By way of contrast, we have seen how the respondents have themselves applied to become distributors of Amway products in India as a sole proprietorship concern under the relevant forms issued by the appellant, read with the Code of Ethics referred to hereinabove. In Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567 , this Court has clearly held that a sole proprietary concern is equated with the proprietor of the business as follows: 6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business insofar as the nature of such case permits. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case. 7. In the present case A.C. Basu, Proprietor of Ashok Transport Agency, had died before the date of the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business. We find it difficult to understand how the provisions of Rule 4 Order XXX CPC, could be extended to such a case. 16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case. 17. Ms. Arora made an impassioned plea to this Court to use its power under Article 142 of the Constitution to straightaway appoint an arbitrator, now that the matter is before this Court. We are afraid we cannot countenance such a suggestion as the respondents would have to now follow the drill of Section 11(6) read with Section 11(9) of the Arbitration Act.
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1[ds]7. The question lies in a very narrow compass.As rightly contended by Ms. Arora, the documentary evidence in this case would be decisive of whether the requirements of sub-clause (i) to Section 2(1)(f) have been met, in which case it is unnecessary to go to sub-clause (iii), as under Section 2(1)(f), at least one of the parties must fall under sub-clauses (i) to (iv) of Section 2(1)(f).11. A reading of the application form as filled in, together with the Code of Ethics, would show that a distributorship may be taken up either in individual capacity, a sole proprietorship concern, partnership firm, or company. When it comes to a husband and wifes distributorship, they are entitled not to two, but to a single distributorship, it being made clear under clause 3.17 of the Code of Ethics that they are to operate only as a single entity. The form that was filled in made it clear that the respondents applied to become a distributor as a sole proprietorship, it being made clear that the husband, Ravindranath Rao Sindhia, was the sole proprietor / primary applicant, the wife, Indumathi Sindhia, being a co-applicant.in Larsen & Toubro Ltd.–SCOMI Engineering Bhd v. MMRDA, (2019) 2 SCC 271. This Court was concerned with an agreement between the MMRDA, an Indian company, and a consortium of Larsen and Toubro, an Indian company together with Scomi Engineering Bhd, a Malaysian company. The argument that was pressed in the appeal before this Court was that since a Malaysian company was involved, it would be a body corporate which is incorporated in a country other than India, which would attract the provisions of Section 2(1)(f)(ii) of the Arbitration Act.This Court repelled the aforesaid argument, stating:9. Under the general conditions of contract, the contractor, in Clause 1.1.2.3 is defined as meaning an individual, firm, company, corporation, joint venture or Consortium, whether incorporated or not. Bidder is also defined under Clause 1.1.2.10 as meaning an individual, firm, company, corporation, joint venture or Consortium which could submit a bid. What is important to notice is that the contract was signed by the employer viz. MMRDA and by the contractor under the head sub-clauses (A) and (B) in which L&T India signed as A and Scomi Engineering Bhd has signed as B. When we come to the consortium agreement that is entered into between the Indian company and the Malaysian company as aforestated, we find in the definition clause that Consortium shall mean L&T and Scomi Engineering Bhd, acting in collaboration, for the purpose of this agreement and shall be called the L&T-SEB Consortium unincorporated. The contract is defined in Sub- Clause 6 as meaning, the contract to be entered by the Consortium with the employer for the execution of the Project. Under Sub-Clause 7, the lead Member of the Consortium or Consortium Leader shall mean L&T, that is, the Indian Company. Under Sub-Clause 8, the Supervisory Board (hereinafter referred to as the SB) shall mean a Board constituted under Clause 11 of the GCC. When we come to Clause 11.2, it is clear that the Members of this Supervisory Board will consist of four members, two appointed by each Member. One of the Members nominated by the Consortium leader and agreed to by all members shall then act as the Chairman of the Supervisory Board, which is, by Clause 11.5, to decide on various matters relating to the execution of the contract. Clause 21.1(g) provides that the Consortium leader shall lead all arbitration proceedings.11. It is important, at this juncture, to refer to an order made by the High Court of Bombay dated 20-10-2016 [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] which, as has been stated earlier, arises between the self-same parties, under the same contract. An interim award made by the arbitrators qua different claims arising under the same contract had made it clear that the claim could be filed only in the name of the Consortium and not separately, as was contended by Shri Jains client. The preliminary issue framed on this count was whether the claimants are entitled to file this claim as Claimant 1 and Claimant 2 or only as the Consortium of L&T and Scomi Engineering Bhd? The High Court of Bombay agreed with the interim award of the arbitrators, and held as follows: (L&T Ltd. case [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] , SCC OnLine Bom para 10)10. Considering the terms and conditions of the contract as well as the decision cited by Mr. Ankhad, in my opinion, in the facts and circumstances of the present case, it is not open for the petitioners to rely upon their independent identities while dealing with the respondent and that they will have to deal with the respondent as a Consortium only. Therefore, there is no infirmity in the impugned order. For the same reason the present petition as filed would also not been maintainable. Hence, the same is dismissed.12. Shri Gopal Jain did not dispute the fact that this judgment was final inter-partes as no appeal has been preferred. Therefore, to stress the fact that it pertains only to this claim and would therefore, not apply to a different set of claims under the arbitration clause is not an argument that appeals to us.13. It is clear, as has been held by the judgment [L&T Ltd v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay, and which is binding inter-partes, that it is not open for the petitioner to rely upon their status as independent entities while dealing with the respondent and they will have to deal with the respondent as a Consortium only.14. This being the case, it is clear that the unincorporated association referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay.18. This being the case, coupled with the fact, as correctly argued by Shri Divan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the consortium agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation.14. This case is distinguishable on facts, inasmuch as a final judgment between the parties made it clear that it would not be open for the consortium to rely upon their status as independent entities while dealing with MMRDA. This being the case, the consortium was held to be an association of persons falling under Section 2(1)(f)(iii), and that since the lead member is to lead arbitral proceedings, the central management and control of the consortium being exercised by Larsen and Toubro in India, it was held that Section 2(1)(f)(iii) would not be attracted on the facts of that case.15. By way of contrast, we have seen how the respondents have themselves applied to become distributors of Amway products in India as a sole proprietorship concern under the relevant forms issued by the appellant, read with the Code of Ethics referred to hereinabove. In Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567 , this Court has clearly held that a sole proprietary concern is equated with the proprietor of the business as follows:6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business insofar as the nature of such case permits. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case.7. In the present case A.C. Basu, Proprietor of Ashok Transport Agency, had died before the date of the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business. We find it difficult to understand how the provisions of Rule 4 Order XXX CPC, could be extended to such a case.16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case.We are afraid we cannot countenance such a suggestion as the respondents would have to now follow the drill of Section 11(6) read with Section 11(9) of the Arbitration Act.
| 1 | 5,608 | 2,138 |
### 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:
It is clear, as has been held by the judgment [L&T Ltd v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay, and which is binding inter-partes, that it is not open for the petitioner to rely upon their status as independent entities while dealing with the respondent and they will have to deal with the respondent as a Consortium only. 14. This being the case, it is clear that the unincorporated association referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay. xxx xxx xxx 18. This being the case, coupled with the fact, as correctly argued by Shri Divan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the consortium agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation. 14. This case is distinguishable on facts, inasmuch as a final judgment between the parties made it clear that it would not be open for the consortium to rely upon their status as independent entities while dealing with MMRDA. This being the case, the consortium was held to be an association of persons falling under Section 2(1)(f)(iii), and that since the lead member is to lead arbitral proceedings, the central management and control of the consortium being exercised by Larsen and Toubro in India, it was held that Section 2(1)(f)(iii) would not be attracted on the facts of that case. 15. By way of contrast, we have seen how the respondents have themselves applied to become distributors of Amway products in India as a sole proprietorship concern under the relevant forms issued by the appellant, read with the Code of Ethics referred to hereinabove. In Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567 , this Court has clearly held that a sole proprietary concern is equated with the proprietor of the business as follows: 6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business insofar as the nature of such case permits. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case. 7. In the present case A.C. Basu, Proprietor of Ashok Transport Agency, had died before the date of the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business. We find it difficult to understand how the provisions of Rule 4 Order XXX CPC, could be extended to such a case. 16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case. 17. Ms. Arora made an impassioned plea to this Court to use its power under Article 142 of the Constitution to straightaway appoint an arbitrator, now that the matter is before this Court. We are afraid we cannot countenance such a suggestion as the respondents would have to now follow the drill of Section 11(6) read with Section 11(9) of the Arbitration Act.
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was final inter-partes as no appeal has been preferred. Therefore, to stress the fact that it pertains only to this claim and would therefore, not apply to a different set of claims under the arbitration clause is not an argument that appeals to us.13. It is clear, as has been held by the judgment [L&T Ltd v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay, and which is binding inter-partes, that it is not open for the petitioner to rely upon their status as independent entities while dealing with the respondent and they will have to deal with the respondent as a Consortium only.14. This being the case, it is clear that the unincorporated association referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348] of the High Court of Bombay.18. This being the case, coupled with the fact, as correctly argued by Shri Divan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the consortium agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation.14. This case is distinguishable on facts, inasmuch as a final judgment between the parties made it clear that it would not be open for the consortium to rely upon their status as independent entities while dealing with MMRDA. This being the case, the consortium was held to be an association of persons falling under Section 2(1)(f)(iii), and that since the lead member is to lead arbitral proceedings, the central management and control of the consortium being exercised by Larsen and Toubro in India, it was held that Section 2(1)(f)(iii) would not be attracted on the facts of that case.15. By way of contrast, we have seen how the respondents have themselves applied to become distributors of Amway products in India as a sole proprietorship concern under the relevant forms issued by the appellant, read with the Code of Ethics referred to hereinabove. In Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567 , this Court has clearly held that a sole proprietary concern is equated with the proprietor of the business as follows:6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business insofar as the nature of such case permits. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case.7. In the present case A.C. Basu, Proprietor of Ashok Transport Agency, had died before the date of the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business. We find it difficult to understand how the provisions of Rule 4 Order XXX CPC, could be extended to such a case.16. In this view of the matter, the argument that there is no international flavour to the transaction between the parties has no legs to stand on. Indeed, an analysis of Section 2(1)(f) would show that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country referred to in Section 2(1)(f) carry on business in India through a business office in India. This being the case, it is clear that the Delhi High Court had no jurisdiction to appoint an arbitrator in the facts of this case.We are afraid we cannot countenance such a suggestion as the respondents would have to now follow the drill of Section 11(6) read with Section 11(9) of the Arbitration Act.
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Mervyn Continho & Others Vs. Collector of Customs, Bombay & Others
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anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of l: l should be worked out." This order is in accordance with the circular of 1959 and as we have said already there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179 , and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devadasans case, AIR 1964 SC 179 . The petition must, therefore, fail so far as seniority of appraisers is concerned.9. This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases.The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraiser are drawn, namely, Appraisers, the promotion being by selection and five years experience as Appraiser is the minimum qualification. Subject to the above all Appraiser selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.10. The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraiser must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the Government right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.11.
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0[ds]6. Before we come to what has been done in 1963 in the matter of fixing seniority of Appraisers we may refer to two other circulars. The first is a circular of the Board issued in 1953. That circular in our opinion has nothing to do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that inter se seniority of direct recruits and promotees in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments. Stress has been laid on behalf of the petitioners on the words is filled in this circular and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words "is filled" used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed for such appointments.7. This brings us back to the circular of 1959 and the main question in that connection is the meaning to be assigned to the words "seniority determined accordingly" in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster which has also been specified namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources namely direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Art. 16 (1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in Government service by the use of the rotational system, they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefor there would have been no anomalies in fixing the seniority list.The question, therefore, narrows down to this: Can it be said that there is denial of equality of opportunity which arises out of the fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in Government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits andorder of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of l: l should be worked out." This order is in accordance with the circular of 1959 and as we have said already there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits anddo we think that this system is on a par with the carry forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179 , and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devadasans case, AIR 1964 SC 179 . The petition must, therefore, fail so far as seniority of appraisers isare of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases.The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraiser are drawn, namely, Appraisers, the promotion being by selection and five years experience as Appraiser is the minimum qualification. Subject to the above all Appraiser selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraiser must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the Government right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.
| 0 | 3,451 | 1,742 |
### 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:
anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of l: l should be worked out." This order is in accordance with the circular of 1959 and as we have said already there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179 , and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devadasans case, AIR 1964 SC 179 . The petition must, therefore, fail so far as seniority of appraisers is concerned.9. This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases.The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraiser are drawn, namely, Appraisers, the promotion being by selection and five years experience as Appraiser is the minimum qualification. Subject to the above all Appraiser selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.10. The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraiser must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the Government right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.11.
### Response:
0
### Explanation:
prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in Government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits andorder of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of l: l should be worked out." This order is in accordance with the circular of 1959 and as we have said already there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits anddo we think that this system is on a par with the carry forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179 , and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devadasans case, AIR 1964 SC 179 . The petition must, therefore, fail so far as seniority of appraisers isare of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases.The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraiser are drawn, namely, Appraisers, the promotion being by selection and five years experience as Appraiser is the minimum qualification. Subject to the above all Appraiser selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraiser must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the Government right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.
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Nahalchand Laloochand (P.) Ltd Vs. Assistant Commissioner of Income-tax, Mumbai
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1. One of the questions for consideration before the High Court was whether Income Tax Appellate Tribunal was in error in covering the income from house property named Kantilal House under Section 27(iiib) of the Income Tax Act, 1961 (For short, Income Tax Act). The High Court observed that tenants from month to month or which are for a period not exceeding one year are excluded from the definition. However, it held that the assessee was a tenant for a long period and let out the premises to Bank of Baroda and, therefore, the income therefrom would be covered by Section 27(iiib) and not the exclusion clause. Section 27(iiib) reads as under:- Owner of the house property, annual charge, etc., defined.- For the purposes of sections 22 to 26-- ** ** ** (iiib) a person who acquires any rights (excluding any rights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof, by virtue of any such transaction as is referred to in clause (f) of section 269UA, shall be deemed to be the owner. 2. For the purposes of Section 27 (iiib), it is necessary to understand the definitions of immovable property and transfer in Section 269UA (d) and (f), which read as under :- 296UA.** ** ** (2)(d) immovable property means-(i) any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings or other things also. Explanation. --For the purposes of this sub-clause, land, building, part of a building, machinery, plant, furniture, fittings and other things include any rights therein ; (ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building ; (f) transfer- (i) in relation to any immovable property referred to in sub-clause(i) of clause (d), means transfer of such property by way of sale or exchange or lease for a term of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882). Explanation. --For the purposes of this sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years ; (ii) in relation to any immovable property of the nature referred to in sub-clause (ii) of clause (d), means the doing of anything (whether by way of admitting as a member of or by way of transfer of shares in a co-operative society or company or other association of persons or by way of any agreement or arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, such property. 3. Sub clause (i) of Section 269UA(f) makes inter alia transaction of lease for a term of not less than twelve years, a transfer in relation to the immovable property referred to in sub-clause (i) of clause (d). The explanation appended to sub-clause (i) of Section 269UA (f) clarifies that a lease which provide for the extension of term by a further term or terms shall be deemed to be a lease if the aggregate of the term for which such lease is to be granted and the further term or terms is not less than twelve years. The essential condition, therefore, for a transfer of an immovable property referred to in clause (d)(i) of Section 269UA is that lease must be for a term of not less than twelve years. For computing twelve years, it is not necessary that initial term of lease must be less of twelve years, but if the lease provides for extension of lease and such lease has been extended by a further term or terms and the aggregate of such term is not less than twelve years, it is deemed to be a transfer of immovable property and such transferee is deemed to be owner of such immovable property under Section 27(iiib) of the Income Tax Act. 4. Neither the order of the Income Tax Appellate Tribunal nor the order of the High Court indicate any consideration of the above aspects in respect of the house property named Kanti Lal House except observing that the assessee has been a tenant for a long period and that it had let out the premises. No definite finding of fact about the pre-requisites of Section 269UA(f)(i) read with explanation as noted above has been recorded either by the Tribunal or by the High Court. 5. Having regard to the above flaw in consideration of the case, we are satisfied that the matter needs reconsideration by the Tribunal since the question involves determination of facts as indicated above. We, accordingly, deem it appropriate to remand the matter to the Income Tax Appellate Tribunal, Mumbai.
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1[ds]4. Neither the order of the Income Tax Appellate Tribunal nor the order of the High Court indicate any consideration of the above aspects in respect of the house property named Kanti Lal House except observing that the assessee has been a tenant for a long period and that it had let out the premises. No definite finding of fact about thes of Section 269UA(f)(i) read with explanation as noted above has been recorded either by the Tribunal or by the High Court5. Having regard to the above flaw in consideration of the case, we are satisfied that the matter needs reconsideration by the Tribunal since the question involves determination of facts as indicated above. We, accordingly, deem it appropriate to remand the matter to the Income Tax Appellate Tribunal, Mumbai.
| 1 | 1,150 | 150 |
### 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:
1. One of the questions for consideration before the High Court was whether Income Tax Appellate Tribunal was in error in covering the income from house property named Kantilal House under Section 27(iiib) of the Income Tax Act, 1961 (For short, Income Tax Act). The High Court observed that tenants from month to month or which are for a period not exceeding one year are excluded from the definition. However, it held that the assessee was a tenant for a long period and let out the premises to Bank of Baroda and, therefore, the income therefrom would be covered by Section 27(iiib) and not the exclusion clause. Section 27(iiib) reads as under:- Owner of the house property, annual charge, etc., defined.- For the purposes of sections 22 to 26-- ** ** ** (iiib) a person who acquires any rights (excluding any rights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof, by virtue of any such transaction as is referred to in clause (f) of section 269UA, shall be deemed to be the owner. 2. For the purposes of Section 27 (iiib), it is necessary to understand the definitions of immovable property and transfer in Section 269UA (d) and (f), which read as under :- 296UA.** ** ** (2)(d) immovable property means-(i) any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings or other things also. Explanation. --For the purposes of this sub-clause, land, building, part of a building, machinery, plant, furniture, fittings and other things include any rights therein ; (ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building ; (f) transfer- (i) in relation to any immovable property referred to in sub-clause(i) of clause (d), means transfer of such property by way of sale or exchange or lease for a term of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1882). Explanation. --For the purposes of this sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years ; (ii) in relation to any immovable property of the nature referred to in sub-clause (ii) of clause (d), means the doing of anything (whether by way of admitting as a member of or by way of transfer of shares in a co-operative society or company or other association of persons or by way of any agreement or arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, such property. 3. Sub clause (i) of Section 269UA(f) makes inter alia transaction of lease for a term of not less than twelve years, a transfer in relation to the immovable property referred to in sub-clause (i) of clause (d). The explanation appended to sub-clause (i) of Section 269UA (f) clarifies that a lease which provide for the extension of term by a further term or terms shall be deemed to be a lease if the aggregate of the term for which such lease is to be granted and the further term or terms is not less than twelve years. The essential condition, therefore, for a transfer of an immovable property referred to in clause (d)(i) of Section 269UA is that lease must be for a term of not less than twelve years. For computing twelve years, it is not necessary that initial term of lease must be less of twelve years, but if the lease provides for extension of lease and such lease has been extended by a further term or terms and the aggregate of such term is not less than twelve years, it is deemed to be a transfer of immovable property and such transferee is deemed to be owner of such immovable property under Section 27(iiib) of the Income Tax Act. 4. Neither the order of the Income Tax Appellate Tribunal nor the order of the High Court indicate any consideration of the above aspects in respect of the house property named Kanti Lal House except observing that the assessee has been a tenant for a long period and that it had let out the premises. No definite finding of fact about the pre-requisites of Section 269UA(f)(i) read with explanation as noted above has been recorded either by the Tribunal or by the High Court. 5. Having regard to the above flaw in consideration of the case, we are satisfied that the matter needs reconsideration by the Tribunal since the question involves determination of facts as indicated above. We, accordingly, deem it appropriate to remand the matter to the Income Tax Appellate Tribunal, Mumbai.
### Response:
1
### Explanation:
4. Neither the order of the Income Tax Appellate Tribunal nor the order of the High Court indicate any consideration of the above aspects in respect of the house property named Kanti Lal House except observing that the assessee has been a tenant for a long period and that it had let out the premises. No definite finding of fact about thes of Section 269UA(f)(i) read with explanation as noted above has been recorded either by the Tribunal or by the High Court5. Having regard to the above flaw in consideration of the case, we are satisfied that the matter needs reconsideration by the Tribunal since the question involves determination of facts as indicated above. We, accordingly, deem it appropriate to remand the matter to the Income Tax Appellate Tribunal, Mumbai.
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M/s THE NEW INDIA ASSURANCE CO. LTD. & ANR Vs. SHASHIKALA J. AYACHI
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has been completely overlooked by the National Consumer Disputes Redressal Commission. 17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details. The relevant portion of the Final Survey Report reads as follows:- We contacted Meteorological Dept of Oman who confirmed no adverse weather report all along the coast of Oman or in the vicinity – Normal weather reported for the alleged incident date and also a day before and after. We Contacted Meteorological Dept of India and enquired for weather report for Persian Gulf on May 29th and 30th , 2011 for the specific area co-ordinates Latitude 23.40 North and Longitude 61.43 East and requested them for details on wind speed, wave height, current and swell, We were provided weather report from India which says good weather prevailed in the Persian Gulf in and around the location where the vessel was reportedly sunk as under: 29.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight 30.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight. 18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank. 19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission. 20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions. 21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day. The reply mail reads as follows:- Respected sir In reference to telephonic discussion with you, I most humbly say that my sailing vessel MSV sea queen is safe and there is no piracy attack on my vessel. I have already inform the coast guard ([email protected]) and D.G.Shipping ([email protected]) via email that my vessel sea queen is safe, on dated 24-10-10. That other information regarding vessels registration, ownership, address, mmsi no etc are true and correct. There are fourteen Indian crew on sea queen and she is on the way to Yemen loaded with general cargo. Last year my vessel sea queen was under repair at Mandvi for 9 month and then for rest of the 4 month she was plying between gulf and Somalia. I again confirm that my vessel sea queen is safe and there is no piracy attack on her. 22. Again on 27.10.2010 a query was made through e-mail at about 4:57 p.m, about (i) the position of the vessel on 23.10.2010; (ii) the current position of the Dhow; and (iii) crew list. A reply was sent on behalf of the respondent at about 5:51p.m. on the same day stating that the vessel was near Madarka Yemen on 25.10.2010 and that the exact position as on 23.10.2010 was not known. 23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location. 24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.
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1[ds]9. But what the National Consumer Commission failed to see was that there were more questions that remained unanswered in the version of the respondent-complainant and that there were more missing links. First of all the respondent-complainant did not state anywhere in the complaint as to where exactly the mishap had happened. In paragraph 9 of the complaint, the respondent stated only broadly that the vessel encountered bad weather and rough tides, when it was between Oman and Pakistan. As per the statement of Shri Osman Suleman Sumbhania who claimed to be the Tandel (Head of the ship or boat) of the subject vessel MSV Sea Queen, the vessel started its voyage from Djibouti on 21.05.2011 towards India, but it encountered bad weather on N 23=40 and E 61 =43°, between Oman and Pakistan. In the statement Shri Harun Abdreman Ruknani, the Tandel of the rescuing vessel MSV Chetak, he claimed that on 30.05.2011 at about 10 o clock in the morning, they were at N 23=40 and E 61 =43° and that they received a call for help on their Wireless Radio.10. Interestingly, the exact place of the occurrence of the incident was mentioned by both the above named persons, only in the statements given to the Superintendent of Customs on 3.06.2011. In the statements made by both the aforesaid persons on 4.06.2011 to the Immigration Officer Mandvi Sea Check Post, the exact place with Longitude and Latitude were not mentioned.11. The Marine Casualty Report dated 16.07.2012, issued by the Marine Mercantile Department, Kandla, of the Government of India, contains a column in Column No.47 relating to weather conditions. The respondent places reliance upon the said report to show that the vessel sank due to bad weather. But interestingly, column 47 of the report does not contain any detail except stating broadly that there was rough weather.12. It may be seen from the above that none of the sub-columns relating to weather direction, force, swell direction, precipitation etc. in Column No.47 has been filled up in the Marine Casualty Report.15. It is common knowledge that the time of receipt of the SOS message by the rescuing vessel and the actual time of rescue of the crew of the sinking vessel cannot be the same. Even according to the respondent, the subject vessel MSV Sea Queen could travel only at a speed of 6-7 knots. Unless the rescuing vessel is in close proximity, the time of the SOS call and the time of rescue cannot be the same. Keeping this in mind if we have a look at the statement made by Shri Harun Abdreman Ruknani, Tandel of the rescuing vessel it makes interesting reading.16. According to the above statement, the Tandel of the rescuing vessel heard the call for help on his wireless radio at 10 o clock in the morning. But according to the statement of the Tandel of the subject vessel, they were rescued at 10 o clock in the morning. However, the Marine Casualty Report indicates the time to be 4:00 a.m. on 30.05.2011. This crucial contradiction has been completely overlooked by the National Consumer Disputes Redressal Commission.17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details.18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank.19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission.20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions.21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day.23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location.24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.
| 1 | 3,098 | 1,193 |
### 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:
has been completely overlooked by the National Consumer Disputes Redressal Commission. 17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details. The relevant portion of the Final Survey Report reads as follows:- We contacted Meteorological Dept of Oman who confirmed no adverse weather report all along the coast of Oman or in the vicinity – Normal weather reported for the alleged incident date and also a day before and after. We Contacted Meteorological Dept of India and enquired for weather report for Persian Gulf on May 29th and 30th , 2011 for the specific area co-ordinates Latitude 23.40 North and Longitude 61.43 East and requested them for details on wind speed, wave height, current and swell, We were provided weather report from India which says good weather prevailed in the Persian Gulf in and around the location where the vessel was reportedly sunk as under: 29.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight 30.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight. 18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank. 19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission. 20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions. 21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day. The reply mail reads as follows:- Respected sir In reference to telephonic discussion with you, I most humbly say that my sailing vessel MSV sea queen is safe and there is no piracy attack on my vessel. I have already inform the coast guard ([email protected]) and D.G.Shipping ([email protected]) via email that my vessel sea queen is safe, on dated 24-10-10. That other information regarding vessels registration, ownership, address, mmsi no etc are true and correct. There are fourteen Indian crew on sea queen and she is on the way to Yemen loaded with general cargo. Last year my vessel sea queen was under repair at Mandvi for 9 month and then for rest of the 4 month she was plying between gulf and Somalia. I again confirm that my vessel sea queen is safe and there is no piracy attack on her. 22. Again on 27.10.2010 a query was made through e-mail at about 4:57 p.m, about (i) the position of the vessel on 23.10.2010; (ii) the current position of the Dhow; and (iii) crew list. A reply was sent on behalf of the respondent at about 5:51p.m. on the same day stating that the vessel was near Madarka Yemen on 25.10.2010 and that the exact position as on 23.10.2010 was not known. 23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location. 24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.
### Response:
1
### Explanation:
Sea Queen, the vessel started its voyage from Djibouti on 21.05.2011 towards India, but it encountered bad weather on N 23=40 and E 61 =43°, between Oman and Pakistan. In the statement Shri Harun Abdreman Ruknani, the Tandel of the rescuing vessel MSV Chetak, he claimed that on 30.05.2011 at about 10 o clock in the morning, they were at N 23=40 and E 61 =43° and that they received a call for help on their Wireless Radio.10. Interestingly, the exact place of the occurrence of the incident was mentioned by both the above named persons, only in the statements given to the Superintendent of Customs on 3.06.2011. In the statements made by both the aforesaid persons on 4.06.2011 to the Immigration Officer Mandvi Sea Check Post, the exact place with Longitude and Latitude were not mentioned.11. The Marine Casualty Report dated 16.07.2012, issued by the Marine Mercantile Department, Kandla, of the Government of India, contains a column in Column No.47 relating to weather conditions. The respondent places reliance upon the said report to show that the vessel sank due to bad weather. But interestingly, column 47 of the report does not contain any detail except stating broadly that there was rough weather.12. It may be seen from the above that none of the sub-columns relating to weather direction, force, swell direction, precipitation etc. in Column No.47 has been filled up in the Marine Casualty Report.15. It is common knowledge that the time of receipt of the SOS message by the rescuing vessel and the actual time of rescue of the crew of the sinking vessel cannot be the same. Even according to the respondent, the subject vessel MSV Sea Queen could travel only at a speed of 6-7 knots. Unless the rescuing vessel is in close proximity, the time of the SOS call and the time of rescue cannot be the same. Keeping this in mind if we have a look at the statement made by Shri Harun Abdreman Ruknani, Tandel of the rescuing vessel it makes interesting reading.16. According to the above statement, the Tandel of the rescuing vessel heard the call for help on his wireless radio at 10 o clock in the morning. But according to the statement of the Tandel of the subject vessel, they were rescued at 10 o clock in the morning. However, the Marine Casualty Report indicates the time to be 4:00 a.m. on 30.05.2011. This crucial contradiction has been completely overlooked by the National Consumer Disputes Redressal Commission.17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details.18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank.19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission.20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions.21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day.23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location.24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.
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State Of Gujarat Vs. R. G. Teredesai & Anr
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May 1958 the City Civil Court decreed the suit holding that the order of dismissal was illegal. He was reinstated with effect from October 10, 1958. He was, however, suspended with immediate effect as a fresh enquiry was proposed to be held against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. A fresh charge-sheet was served on him containing the same allegations as on the previous occasion. In December 1959 a notice was served on him by the Government calling upon him to show cause why punishment of removal should not be imposed on him. Along with the show cause notice the report of the Enquiry Officer containing his findings was sent to him. The Enquiry Officer had also made certain recommendations regarding the punishment which in his opinion should be inflicted on the first respondent. No copy of these recommendations, however, was furnished to him. In March 1960 it was proposed that the first respondent be allocated to the State of Gujarat in view of the bifurcation of the erstwhile State of Bombay. In September 1960 he was removed from service by an order passed by the State Government. The first respondent then filed a petition under Article 226 of the Constitution 2challeging the order of the Constitution challenging the order of removal.3. One of the points which was raised before the High Court was that the failure to send a copy of the report of the Enquiry Officer containing his recommendations in the matter of punishment vitiated the proceedings. The High Court expressed the view that since the recommendations were a part of the appropriate material for the consideration of the Government in the matter of imposition of punishment on the first respondent, he was entitled to a copy of those recommendations at the time when he was called upon to show cause. It was consequently held that the proceedings were vitiated from the stage of the show cause notice relating to punishment. The order of removal was set aside but it was made clear that the Government would be at liberty to issue a fresh show cause notice regarding the proposed punishment and to take appropriate proceedings from that stage onwards if it chose to do so. The State has filed the present appeal.4. Learned counsel for the State urged that the Enquiry Officer was not required to make any recommendation about the punishment which was to be imposed on the first respondent on the charges against him which had been found to have been proved. It was pointed out that the sole duty of the Enquiry Officer was to give his conclusions or findings on the charges which he was called upon to enquire into and the recommendations which he made in the matter of punishment were wholly redundant and irrelevant. For that reason it was not at all necessary that the first respondent should have been supplied a copy of the recommendations relating to punishment. In this connection reference has been made to the Bombay Civil Services (Conduct, Discipline and Appeal Rules) wherein the procedure has been laid down when an order of dismissal, removal or reduction in rank has to be passed on a member of the service. According to the Rule the proceedings shall contain sufficient record of the evidence and a statement of the findings and the grounds thereof. There are are similar provisions in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.5. In Union of India v. H. C. Goel, 1964-4 SCR 718 = (AIR 1964 SC 364 ), it has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendation as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government.Now it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation.The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.6. We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.7.
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0[ds]6. We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.In Union of India v. H. C. Goel, 1964-4 SCR 718 = (AIR 1964 SC 364 ), it has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendation as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government.Now it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation.The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.
| 0 | 1,242 | 445 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
May 1958 the City Civil Court decreed the suit holding that the order of dismissal was illegal. He was reinstated with effect from October 10, 1958. He was, however, suspended with immediate effect as a fresh enquiry was proposed to be held against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. A fresh charge-sheet was served on him containing the same allegations as on the previous occasion. In December 1959 a notice was served on him by the Government calling upon him to show cause why punishment of removal should not be imposed on him. Along with the show cause notice the report of the Enquiry Officer containing his findings was sent to him. The Enquiry Officer had also made certain recommendations regarding the punishment which in his opinion should be inflicted on the first respondent. No copy of these recommendations, however, was furnished to him. In March 1960 it was proposed that the first respondent be allocated to the State of Gujarat in view of the bifurcation of the erstwhile State of Bombay. In September 1960 he was removed from service by an order passed by the State Government. The first respondent then filed a petition under Article 226 of the Constitution 2challeging the order of the Constitution challenging the order of removal.3. One of the points which was raised before the High Court was that the failure to send a copy of the report of the Enquiry Officer containing his recommendations in the matter of punishment vitiated the proceedings. The High Court expressed the view that since the recommendations were a part of the appropriate material for the consideration of the Government in the matter of imposition of punishment on the first respondent, he was entitled to a copy of those recommendations at the time when he was called upon to show cause. It was consequently held that the proceedings were vitiated from the stage of the show cause notice relating to punishment. The order of removal was set aside but it was made clear that the Government would be at liberty to issue a fresh show cause notice regarding the proposed punishment and to take appropriate proceedings from that stage onwards if it chose to do so. The State has filed the present appeal.4. Learned counsel for the State urged that the Enquiry Officer was not required to make any recommendation about the punishment which was to be imposed on the first respondent on the charges against him which had been found to have been proved. It was pointed out that the sole duty of the Enquiry Officer was to give his conclusions or findings on the charges which he was called upon to enquire into and the recommendations which he made in the matter of punishment were wholly redundant and irrelevant. For that reason it was not at all necessary that the first respondent should have been supplied a copy of the recommendations relating to punishment. In this connection reference has been made to the Bombay Civil Services (Conduct, Discipline and Appeal Rules) wherein the procedure has been laid down when an order of dismissal, removal or reduction in rank has to be passed on a member of the service. According to the Rule the proceedings shall contain sufficient record of the evidence and a statement of the findings and the grounds thereof. There are are similar provisions in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.5. In Union of India v. H. C. Goel, 1964-4 SCR 718 = (AIR 1964 SC 364 ), it has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendation as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government.Now it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation.The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.6. We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.7.
### Response:
0
### Explanation:
6. We have no manner of doubt that the decision of the High Court must be upheld in the above view of the matter.In Union of India v. H. C. Goel, 1964-4 SCR 718 = (AIR 1964 SC 364 ), it has been observed that unless the statutory rules or the specific order under which an officer is appointed to hold an inquiry so requires the Enquiry Officer need not make any recommendation as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if however, the Enquiry Officer makes any recommendations the said recommendations, like his findings on the merits, are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government.Now it is correct that the Enquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. In other words since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation.The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.
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The Member For The Board Of Agricultural Income Tax, Assam Vs. Smt. Sindhurani Chaudhurani.(With Connected Appeals)
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income". Moreover the dictum the smaller the salami the higher the rent and vice versa did not receive acceptance by the Federal Court when the present matter was heard in that Court before remand (C.A. No. 30 of 1949),20. In Mehar Bano Khanum v. Secretary of State, I L R 53 Cal 34 : (A I R 1925 Cal 929 ) (FB) (I), "salami" was defined to be an amount received by the landlord for the recognition of the transfer of a non-transferable holding which was paid to the landlord because of his ownership of the land. It was held to be "agricultural income" as it was "rent or revenue" within the meaning of that expression. The Standing Counsel who appeared for the Secretary of State in that case conceded that it was not revenue but his argument was that it was not revenue derived from land but that it was an incident of the transfer and not of tenancy and therefore did not flow from the land. In neither of these cases was it argued whether salami was a revenue receipt or capital receipt.21. In a Full Bench of the Patna High Court in Rajendra Narayan v. Commissioner of Income tax, I L R 9 Pat 1: (A I R 1929 Pat 449) (J), mutation fees were held to be agricultural income but that was a case of payment after the relationship of landlord and tenant bed come into existence. Similarly in the Commissioner of Income-tax v. K.C. Manavikraman Rajah, I L R 1945 Mad 837: (A I R 1945 Mad 207) (K), monies paid for the renewal of leases were held to be agricultural income within the meaning of S. 2(1) (a), Income- tax Act. Here again the monies were paid not for the constitution of the relationship of landlord and tenant but after that relationship had come into existence and for its continuance.22. In Bikram Kishore Manikya Bahadur v. Province of Assam, 53 C W N 164 (L), a case under the Act, Harries, C.J., referred to 70 Ind App 180 at p.190: (A I R 1943 P C 153 at p.156) (C), and held that it had to be decided on the facts of each case whether salami was agricultural income or not because it was not known in respect of what transaction the amount was received.23. The Orissa High Court in S.M. Bose v. Secretary Board of Revenue, A I R 1953 Orissa 288 (M), has held that salami is not a payment of rent in advance nor is it income but is a payment by way of capital receipt. It has contended before us that the Privy Council in 70 Ind App 180 at p. 190: (A I R 1943 P C 153 at p. 156) (C), based its decision on the wasting nature of the assets under the lease. But the definition given by Lord Wright is in general terms and just describes what the characteristics of a payment by way of salami are without any reference as to the nature of assets under a lease.24. In all these appeals before us the assessee derived considerably large amounts of income from agricultural holdings. It is not shown as to what the number of the holdings were but they must have been considerably large. On the other hand the number of settlements was comparatively small - a few hundreds and consisted of settlements of virgin lands as well as of auction purchase lands and were not derived from the same holdings at regular intervals. This and the findings of fact given above negative the finding as to "regularity and periodicity" of payment of salami and also that it "arose out of business of letting out his land." The payments by way of salami were made by the prospective lessees anterior to the constitution of the relationship of landlord and tenant as the price for the lessor agreeing to the parting of his rights in an agricultural holding in favour of the proposed lessee.25. In Principles of Mohamadan Law by Macnaughton salami is defined as;"a free gift by way of compliment or in return of a favour,"In Wilsons Glossary the meaning given to it is:"a complimentary present a douceur ......... a present to a superior upon being introduced to him; a gratuity or offering on receiving a lease ..........."In the Arabic-English Dictionary by Johnson it means:"......... a present on being introduced to a superior; earnest money; a free gift from a farmer to Government of talking lands ........."In vol. I of Baden-Powells "Land Systems of British India" it is stated at page 543;"."........ the Zamindar, to raise money, had sold so many taluqs or under farms for salami or fees paid down ..........."Thus all these definitions show that salami is a payment by the tenant as a present or as price for parting by the landlord with his rights under the lease of a holding. It is a lump sum payment as consideration for what the landlord transfers to the tenant.26. The manner in which the leases were dealt with and the fact that in no case was a non-occupancy tenant evicted and his tenure was allowed to mature into an occupancy holding shows that the leases were in practice not so precarious as was suggested by the Board, but had an element of stability and permanency attached to them. Therefore, when a tenant paid salami he did so in order to get in return an estate in the land owned by the zamindar. Salami is thus not rent and both parties have proceeded on that basis and it could not be called revenue within the meaning of the word used in the definition of agricultural income under S. 2(1) (a) of the Act because it was a payment to the landlord by the tenant as a consideration for the transfer of a right in zamindari lands owned by the landlord. It has, therefore, all the characteristics of a capital payment and is not revenue.
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0[ds]24. In all these appeals before us the assessee derived considerably large amounts of income from agricultural holdings. It is not shown as to what the number of the holdings were but they must have been considerably large. On the other hand the number of settlements was comparatively small - a few hundreds and consisted of settlements of virgin lands as well as of auction purchase lands and were not derived from the same holdings at regularand the findings of fact given above negative the finding as to "regularity and periodicity" of payment of salami and also that it "arose out of business of letting out his land." The payments by way of salami were made by the prospective lessees anterior to the constitution of the relationship of landlord and tenant as the price for the lessor agreeing to the parting of his rights in an agricultural holding in favour of the proposed lessee.The manner in which the leases were dealt with and the fact that in no case was a non-occupancy tenant evicted and his tenure was allowed to mature into an occupancy holding shows that the leases were in practice not so precarious as was suggested by the Board, but had an element of stability and permanency attached to them. Therefore, when a tenant paid salami he did so in order to get in return an estate in the land owned by theis thus not rent and both parties have proceeded on that basis and it could not be called revenue within the meaning of the word used in the definition of agricultural income under S. 2(1) (a) of the Act because it was a payment to the landlord by the tenant as a consideration for the transfer of a right in zamindari lands owned by the landlord. It has, therefore, all the characteristics of a capital payment and is not revenue.
| 0 | 4,700 | 338 |
### 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:
income". Moreover the dictum the smaller the salami the higher the rent and vice versa did not receive acceptance by the Federal Court when the present matter was heard in that Court before remand (C.A. No. 30 of 1949),20. In Mehar Bano Khanum v. Secretary of State, I L R 53 Cal 34 : (A I R 1925 Cal 929 ) (FB) (I), "salami" was defined to be an amount received by the landlord for the recognition of the transfer of a non-transferable holding which was paid to the landlord because of his ownership of the land. It was held to be "agricultural income" as it was "rent or revenue" within the meaning of that expression. The Standing Counsel who appeared for the Secretary of State in that case conceded that it was not revenue but his argument was that it was not revenue derived from land but that it was an incident of the transfer and not of tenancy and therefore did not flow from the land. In neither of these cases was it argued whether salami was a revenue receipt or capital receipt.21. In a Full Bench of the Patna High Court in Rajendra Narayan v. Commissioner of Income tax, I L R 9 Pat 1: (A I R 1929 Pat 449) (J), mutation fees were held to be agricultural income but that was a case of payment after the relationship of landlord and tenant bed come into existence. Similarly in the Commissioner of Income-tax v. K.C. Manavikraman Rajah, I L R 1945 Mad 837: (A I R 1945 Mad 207) (K), monies paid for the renewal of leases were held to be agricultural income within the meaning of S. 2(1) (a), Income- tax Act. Here again the monies were paid not for the constitution of the relationship of landlord and tenant but after that relationship had come into existence and for its continuance.22. In Bikram Kishore Manikya Bahadur v. Province of Assam, 53 C W N 164 (L), a case under the Act, Harries, C.J., referred to 70 Ind App 180 at p.190: (A I R 1943 P C 153 at p.156) (C), and held that it had to be decided on the facts of each case whether salami was agricultural income or not because it was not known in respect of what transaction the amount was received.23. The Orissa High Court in S.M. Bose v. Secretary Board of Revenue, A I R 1953 Orissa 288 (M), has held that salami is not a payment of rent in advance nor is it income but is a payment by way of capital receipt. It has contended before us that the Privy Council in 70 Ind App 180 at p. 190: (A I R 1943 P C 153 at p. 156) (C), based its decision on the wasting nature of the assets under the lease. But the definition given by Lord Wright is in general terms and just describes what the characteristics of a payment by way of salami are without any reference as to the nature of assets under a lease.24. In all these appeals before us the assessee derived considerably large amounts of income from agricultural holdings. It is not shown as to what the number of the holdings were but they must have been considerably large. On the other hand the number of settlements was comparatively small - a few hundreds and consisted of settlements of virgin lands as well as of auction purchase lands and were not derived from the same holdings at regular intervals. This and the findings of fact given above negative the finding as to "regularity and periodicity" of payment of salami and also that it "arose out of business of letting out his land." The payments by way of salami were made by the prospective lessees anterior to the constitution of the relationship of landlord and tenant as the price for the lessor agreeing to the parting of his rights in an agricultural holding in favour of the proposed lessee.25. In Principles of Mohamadan Law by Macnaughton salami is defined as;"a free gift by way of compliment or in return of a favour,"In Wilsons Glossary the meaning given to it is:"a complimentary present a douceur ......... a present to a superior upon being introduced to him; a gratuity or offering on receiving a lease ..........."In the Arabic-English Dictionary by Johnson it means:"......... a present on being introduced to a superior; earnest money; a free gift from a farmer to Government of talking lands ........."In vol. I of Baden-Powells "Land Systems of British India" it is stated at page 543;"."........ the Zamindar, to raise money, had sold so many taluqs or under farms for salami or fees paid down ..........."Thus all these definitions show that salami is a payment by the tenant as a present or as price for parting by the landlord with his rights under the lease of a holding. It is a lump sum payment as consideration for what the landlord transfers to the tenant.26. The manner in which the leases were dealt with and the fact that in no case was a non-occupancy tenant evicted and his tenure was allowed to mature into an occupancy holding shows that the leases were in practice not so precarious as was suggested by the Board, but had an element of stability and permanency attached to them. Therefore, when a tenant paid salami he did so in order to get in return an estate in the land owned by the zamindar. Salami is thus not rent and both parties have proceeded on that basis and it could not be called revenue within the meaning of the word used in the definition of agricultural income under S. 2(1) (a) of the Act because it was a payment to the landlord by the tenant as a consideration for the transfer of a right in zamindari lands owned by the landlord. It has, therefore, all the characteristics of a capital payment and is not revenue.
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24. In all these appeals before us the assessee derived considerably large amounts of income from agricultural holdings. It is not shown as to what the number of the holdings were but they must have been considerably large. On the other hand the number of settlements was comparatively small - a few hundreds and consisted of settlements of virgin lands as well as of auction purchase lands and were not derived from the same holdings at regularand the findings of fact given above negative the finding as to "regularity and periodicity" of payment of salami and also that it "arose out of business of letting out his land." The payments by way of salami were made by the prospective lessees anterior to the constitution of the relationship of landlord and tenant as the price for the lessor agreeing to the parting of his rights in an agricultural holding in favour of the proposed lessee.The manner in which the leases were dealt with and the fact that in no case was a non-occupancy tenant evicted and his tenure was allowed to mature into an occupancy holding shows that the leases were in practice not so precarious as was suggested by the Board, but had an element of stability and permanency attached to them. Therefore, when a tenant paid salami he did so in order to get in return an estate in the land owned by theis thus not rent and both parties have proceeded on that basis and it could not be called revenue within the meaning of the word used in the definition of agricultural income under S. 2(1) (a) of the Act because it was a payment to the landlord by the tenant as a consideration for the transfer of a right in zamindari lands owned by the landlord. It has, therefore, all the characteristics of a capital payment and is not revenue.
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Union of India (UOI) Vs. U.P. State Bridge Corporation Ltd
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frequent transfers etc., then the principle of default procedure at least in the cases where Government has assumed the role of appointment of arbitrators to itself, has to be applied in the case of substitute arbitrators as well and the Court will step in to appoint the arbitrator by keeping aside the procedure which is agreed to between the parties. However, it will depend upon the facts of a particular case as to whether such a course of action should be taken or not. What we emphasise is that Court is not powerless in this regard.In Singh Builders Syndicate (supra) where pendency of arbitration proceedings for over a decade was found by this Court to be a mockery of a process. This anguish is expressed by the Court in the said judgment in the following manner:15. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of the parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such tribunal is made non -functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expedititiously to replace the arbitrators in terms of the arbitration agreement, the Chief Justice or his designate, required to exercise power Under Section 11 of the Act, can step in and pass appropriate orders.16. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously.17. Constituting Arbitral Tribunals with serving officers from different far -away places should be avoided. There can be no hard-and–fast rule, but there should be a conscious effort to ensure that the Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades.18. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of Clause 64, there may be a need to change even the other two members of the Tribunal.19. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole arbitrator does not call for interference in exercise of jurisdiction Under Art.136 of the Constitution of India." 13. The appointment of arbitrator by the Court, of its own choice, departing from the arbitration clause, is therefore not unknown and has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court. Reasons for debating such a course of action are not far to seek and already taken note of above. 14. In the present case, we find the fact situation almost same as in Tripple Engineering Works (supra) and Singh Builders Syndicate (supra). If the contention of the Appellant is allowed, it would amount to giving premium to the Appellant for the fault of the Arbitral Tribunals members who were appointed by none else but by Appellant itself. As pointed above, the Appellant has not questioned the order of the High Court in so far as it has terminated the mandate of the earlier Arbitral Tribunal because of their inability to perform the task assigned to them. In such a situation, leaving the Respondent at the mercy of the Appellant thereby giving the power to the Appellant to constitute another Arbitral Tribunal would amount to adding insult to the serious injury already suffered by the Respondent because of non conclusion of the arbitral proceedings even when the dispute were raised in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equally protected. 15.
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0[ds]9. As is clear from the reading of Section 14, when there is a failure on the part of the Arbitral Tribunal to act and it is unable to perform its function either de jure or de facto, it is open to a party to the arbitration proceedings to approach the Court to decide on the termination of the mandate. Section 15 provides some more contingencies when mandate of an arbitrator can get terminated. In the present case, the High Court has come to a categorical finding that the Arbitral Tribunal failed to perform its function, and rightly so. It is a clear case of inability on the part of the members of the Tribunal to proceed in the matter as the matter lingered on for almost four years, without any rhyme or justifiable reasons. The members did not mend their ways even when another life was given by granting three months to them. Virtually a preemptory order was passed by the High Court, but the Arbitral Tribunal remained unaffected and took the directions of the High Court in a cavalier manner. Therefore, the order of the High Court terminating the mandate of the arbitral tribunal is flawless. This aspect of the impugned order is not even questioned by the Appellant at the time of hearing of the present appeal.We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously.The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole arbitrator does not call for interference in exercise of jurisdiction Under Art.136 of the Constitution of India.In the present case, we find the fact situation almost same as in Tripple Engineering Works (supra) and Singh Builders Syndicate (supra). If the contention of the Appellant is allowed, it would amount to giving premium to the Appellant for the fault of the Arbitral Tribunals members who were appointed by none else but by Appellant itself. As pointed above, the Appellant has not questioned the order of the High Court in so far as it has terminated the mandate of the earlier Arbitral Tribunal because of their inability to perform the task assigned to them. In such a situation, leaving the Respondent at the mercy of the Appellant thereby giving the power to the Appellant to constitute another Arbitral Tribunal would amount to adding insult to the serious injury already suffered by the Respondent because of non conclusion of the arbitral proceedings even when the dispute were raised in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equallydoubt, ordinarily that would be the position. The moot question, however, is as to whether such a course of action has to be necessarily adopted by the High Court in all cases, while dealing with an application Under Section 11 of the Act or there is a room for play in the joints and the High Court is not divested of exercising discretion under some circumstances? If yes, what are those circumstances? It is this very aspect which was specifically dealt with by this Court in Tripple Engineering Works (supra). Taking note of various judgments, the Court pointed out that the notion that the High Court was bound to appoint the arbitrator as per the contract between the parties has seen a significant erosion in recent past. In para 5 of the said decision, those judgments where departure of the aforesaid "classical notion" has been made are taken note of.e fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously.Constituting Arbitral Tribunals with serving officers from different faraway places should be avoided. There can be norule, but there should be a conscious effort to ensure that the Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades.18. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of Clause 64, there may be a need to change even the other two members of the Tribunal.In the present case, we find the fact situation almost same as in Tripple Engineering Works (supra) and Singh Builders Syndicate (supra). If the contention of the Appellant is allowed, it would amount to giving premium to the Appellant for the fault of the Arbitral Tribunals members who were appointed by none else but by Appellant itself. As pointed above, the Appellant has not questioned the order of the High Court in so far as it has terminated the mandate of the earlier Arbitral Tribunal because of their inability to perform the task assigned to them. In such a situation, leaving the Respondent at the mercy of the Appellant thereby giving the power to the Appellant to constitute another Arbitral Tribunal would amount to adding insult to the serious injury already suffered by the Respondent because of non conclusion of the arbitral proceedings even when the dispute were raised in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equally
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### 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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frequent transfers etc., then the principle of default procedure at least in the cases where Government has assumed the role of appointment of arbitrators to itself, has to be applied in the case of substitute arbitrators as well and the Court will step in to appoint the arbitrator by keeping aside the procedure which is agreed to between the parties. However, it will depend upon the facts of a particular case as to whether such a course of action should be taken or not. What we emphasise is that Court is not powerless in this regard.In Singh Builders Syndicate (supra) where pendency of arbitration proceedings for over a decade was found by this Court to be a mockery of a process. This anguish is expressed by the Court in the said judgment in the following manner:15. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of the parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such tribunal is made non -functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expedititiously to replace the arbitrators in terms of the arbitration agreement, the Chief Justice or his designate, required to exercise power Under Section 11 of the Act, can step in and pass appropriate orders.16. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously.17. Constituting Arbitral Tribunals with serving officers from different far -away places should be avoided. There can be no hard-and–fast rule, but there should be a conscious effort to ensure that the Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades.18. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of Clause 64, there may be a need to change even the other two members of the Tribunal.19. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole arbitrator does not call for interference in exercise of jurisdiction Under Art.136 of the Constitution of India." 13. The appointment of arbitrator by the Court, of its own choice, departing from the arbitration clause, is therefore not unknown and has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court. Reasons for debating such a course of action are not far to seek and already taken note of above. 14. In the present case, we find the fact situation almost same as in Tripple Engineering Works (supra) and Singh Builders Syndicate (supra). If the contention of the Appellant is allowed, it would amount to giving premium to the Appellant for the fault of the Arbitral Tribunals members who were appointed by none else but by Appellant itself. As pointed above, the Appellant has not questioned the order of the High Court in so far as it has terminated the mandate of the earlier Arbitral Tribunal because of their inability to perform the task assigned to them. In such a situation, leaving the Respondent at the mercy of the Appellant thereby giving the power to the Appellant to constitute another Arbitral Tribunal would amount to adding insult to the serious injury already suffered by the Respondent because of non conclusion of the arbitral proceedings even when the dispute were raised in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equally protected. 15.
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in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equallydoubt, ordinarily that would be the position. The moot question, however, is as to whether such a course of action has to be necessarily adopted by the High Court in all cases, while dealing with an application Under Section 11 of the Act or there is a room for play in the joints and the High Court is not divested of exercising discretion under some circumstances? If yes, what are those circumstances? It is this very aspect which was specifically dealt with by this Court in Tripple Engineering Works (supra). Taking note of various judgments, the Court pointed out that the notion that the High Court was bound to appoint the arbitrator as per the contract between the parties has seen a significant erosion in recent past. In para 5 of the said decision, those judgments where departure of the aforesaid "classical notion" has been made are taken note of.e fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously.Constituting Arbitral Tribunals with serving officers from different faraway places should be avoided. There can be norule, but there should be a conscious effort to ensure that the Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades.18. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of Clause 64, there may be a need to change even the other two members of the Tribunal.In the present case, we find the fact situation almost same as in Tripple Engineering Works (supra) and Singh Builders Syndicate (supra). If the contention of the Appellant is allowed, it would amount to giving premium to the Appellant for the fault of the Arbitral Tribunals members who were appointed by none else but by Appellant itself. As pointed above, the Appellant has not questioned the order of the High Court in so far as it has terminated the mandate of the earlier Arbitral Tribunal because of their inability to perform the task assigned to them. In such a situation, leaving the Respondent at the mercy of the Appellant thereby giving the power to the Appellant to constitute another Arbitral Tribunal would amount to adding insult to the serious injury already suffered by the Respondent because of non conclusion of the arbitral proceedings even when the dispute were raised in the year 2007. In case, the cherished and benevolent purpose and objective of speedy resolution of the disputes by arbitral proceedings is to be accomplished, it becomes the bounden duty of the persona designata to appoint such arbitrator(s) who have sufficient time at their disposal to attend to this task assigned to them and to conclude the arbitral proceedings in a speedily manner. It is a common sight that the officers who are awfully busy in their other routine functions, because of their status and position, are made arbitrators. For them, discharge of their other duties assumes more importance (and naturally so) and their role as the arbitrators takes a back seat. This kind of behaviour showing casual approach in arbitration cases is anathema to the very genesis of arbitration. Therefore, where the Government assumes the authority and power to itself, in one sided arbitration clause, to appoint the arbitrators in the case of disputes, it should be more vigilant and more responsible in choosing the arbitrators who are in a position to conduct the arbitral proceedings in an efficient manner, without compromising with their other duties. Time has come when the appointing authorities have to take call on such aspects failing which (as in the instant case), Courts are not powerless to remedy such situations by springing into action and exercising their powers as contained in Section 11 of the Act to constitute an Arbitral Tribunal, so that interest of the other side is equally
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Mathalone Vs. Bombay Life Assurance Co. Ltd.Pingle Venkat Rama Reddyv.S
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up the right attitude by enquiring as to who the real beneficiary was and to be satisfied by the production of the relative transfer forms. Now, if this had been the only attitude of Mr. Reddy much might have been said in his favour. But unfortunately in this very letter Reddy clearly declined any liability or obligation upon him to apply for these shares on behalf of his beneficiary. Whether he knew that his purchaser was Sir Padampat or not, as the learned Judge has held, or whether there is force in Sir Jamshedjis contention that Messrs. Craigie, Blunt and Caroe referred to the purchasers as Sir Padampat and others, the fact remains that Reddy did not accept his liability as a trustee and then agreed to discharge that liability provided he was satisfied as to who his purchaser was. He only wanted to be satisfied about his purchaser in order to send to him the letter to renunciation. That was the only question on which he wanted to be satisfied. In view of the attitude taken up by Reddy the plaintiff had no other course open to him except to file the suit, and, therefore, in our opinion the learned Judge was right when he came to the conclusion that the plaintiff was entitled to the relief he had claimed."We have not been able to appreciate this line of thought. The attitude adopted by Reddy could not cure the defects in the requisition alleged to have been made on behalf of the plaintiff. If the directions given to the trustee were of an inconclusive nature, and were in law ineffective, then the trustee could not be mulcted in damages for not obeying them, even if his attitude was not what it should have been. The plaintiff is not entitled to damages, unless and until he proves that he made a proper and effective demand on the trustee and this the trustee failed to carry out. On this ground also, both the suits are bound to fail18. Mr. Pathak argued that the plaintiff was entitled to reliefs (a) and (b) both in his suit as well as in the receivers suit and that the receivers suit was wrongly dismissed by the High Court. We are unable to agree. In our opinion, the High Court rightly held that the receiver appointed in the suit of Sir Padampat could not acquire the newly issued shares in his name. That privilege was conferred by Section 105-C only on a person whose name was on the register of members. The receivers name admittedly was not in the register and the company was not bound to entertain that application. Mr. Pathak argued that that may be so but the receiver was not making an application in his individual right but he had been armed by the court with power to apply in the right of the defendant Reddy. The fact however is that the receiver made the application in his own name. Even if Mr. Pathaks contention is right the company was no party to the suit filed by Sir Padampat against Reddy and that being so, no order could be issued to the company in that suit to recognize the receiver as a shareholder in place of Reddy. The matter might have been different if the company was a party to the suit and was ordered by the court to register the receivers to name in place of Reddys for the 484 shares purchased by Sir Padampat and was also ordered to issue new shares in the name of the receiver. It is not necessary for us to offer any final opinion on the question whether the court would have been within its right to direct his name to be included in the register, even if the company was impleaded in the suit filed by Sir Padampat against Reddy. We are however quite clear that the company not having been impleaded in that suit, it was not bound to issue the new shares in the name of a person whose name was not already in the register of members even if he represented a person whose name was already in the register. The High Court was thus right in dismissing the receivers suit. We are also of the opinion that the appellate Bench of the High Court was also right when it declined to grant reliefs (a) and (b) of the plant to Sir Padampat. The sanction given to the company to issue new capital had lapsed long before BHAGWATI J. granted reliefs (a) and (b) to the plaintiff. It was an extraordinary procedure in a civil suit to direct a company which was no party to the original suit to obtain fresh sanction for the issue of new shares and then allot them to the plaintiff. It seems to have been overlooked that if sanction to issue new capital was somehow obtained, that capital would also have to be distributed as directed by Section 105-C and could not be allotted by the directors in favour of any particular shareholder. In the altered situation that arose after the institution of the suit, if the plaintiff succeeded, the only relief that could be granted to him was the relief of damages. We are however unable to grant the relief to the plaintiff in view of our finding that Reddy could not be compelled as constructive trustee to buy new shares in his own name for the cestui que trust and further in view of our finding that even if he could be compelled to acquire those shares in his own name for the cestui que trust he could not be said to have defaulted in his duty in carrying out the directions of the cestui que trust as in this case no proper and valid requisition was made by the cestui que trust on the trustee for the acquisition of those shares. The plaintiffs in the two suits are therefore not entitled to any relief
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1[ds]It was been held in the courts below that Sir Padampat became on the 29th July, 1944, the sole beneficial owner of 484 shares sold by Reddy, the legal title to which was vested in him. That having been found, the relation of trustee and cestui que trust was thereby established between them. All that is necessary to establish such a relationship is in the defendant. The fact that such a relationship qua the 484 shares sold by Reddy existed between the parties to the suit was not disputed by the learned Attorney-General appearing for Reddy, but he contested the view of the High Court that the cestui que trust could not on any principle of equity or law call upon the trustee to bear his burdens and ask him to obtain on his behalf new shares of the company or make further investments in its capital which would involve in its train new obligations and freshsection limits the proper of the directors to dispose of the further issue of capital in any manner that they may think most beneficial to the company. They are under a mandate to offer these shares in the first instance to the members in proportion to the existing shares held by them. In other words, a member becomes entitled under the provisions of this section by reason of his being the holder of a certain number of shares in the company, to obtain shares in the further issue of capital as ofis not a fruit of stock ownership, in the nature of a profit, nor does it amount to a division of any part of the assets of the company. It is not an organic product of the original stock like the young of animals or the fruit of trees, but, as described by the Supreme Court of America in Miles v. Safe Deposit Trust Co., this right to subscribe to new stock is but a right to participate in preference to strangers and on equal terms with other existing shareholders in the privilege of contributing new capital called for by the corporation - an equity that inheres in stock ownership under such circumstances as a quality inseparable from the capital interest represented by the old stock. The exercise of the privilege depends on the option of the shareholder. If he likes, he can invest further money and purchase a proportionate share of the new issue of capital. He is of course not obliged to do so. He has also the right to assign the offer made to him in favour of any other persons but in that event the directors have the option to allot or not to allot the shares to the person in whose favour the shareholder renounces the shares offered to him. The offer, of course, creates fresh rights but it also brings in its train liabilities and obligation. It confers the right on a shareholder to purchase shares in the new issue of capital in preparation to his existing shareholding, but in order to obtain that right he has to fulfil certain obligations and he has to incur certain liabilities. In the first instance, if he decides to invest his money in the further capital issued, he has to make an application to the company for the allotment of shares so offered and with his application he has to remit to the company the amount of the application money. That having been done, if the shares offered are only partly paid up, as they were in this case, he incurs on allotment the further liability of meeting any future calls on these shares. Can it be said in this situation that a transferor of a certain number of shares, being the legal owner of those shares and the beneficial interest of which vests in the cestui que trust, is liable for all the payments and obligations attaching to the view issue of shares and is bound to act in both respects for the benefit of the cestui que trust; in other words, that he is under a duty, when so instructed by his beneficiary, to make an application for the new issue of shares offered under the provisions of Section 105-C and obtain them in his name by making the necessary payments and by incurring the consequentialour opinion the observations made in these cases cited above must be limited to the facts of those cases. We are here dealing with a trustee with peculiar duties and peculiar liabilities, and it is a fallacy to suppose that every trustee has the same duties and liabilities. In none of the cases cited by Mr. Pathak was there any question of the trustees incurring any personal any personal pecuniaryonly question there was whether he should exercise the option of receiving the dividend or of converting the bonus into the shape of capital. It is part of the general law of trust that a trustee must act in a manner most beneficial to the cestui que trust and he can retain no benefit to himself from the corpus of the trust estate or from anything that accrues to that estate subsequently. None of these cases deal with a situation like the one that has arisen in the presentsee no principle of equity or of general law which obliges a trustee to buy new shares in his own name for the benefit of the cestui que trust and when in so doing he has to bear a heavier pecuniary burden than he undertook to bear as constructive trustee by reason of the sale of his shares in favour of the cestui que trust and which relationship was contemplated to also only till the time when the shares sold could not be registered in the name of the transferee. Of course, if the trustee of his own volition chose to obtain the new shares which appertain to the shares already sold by him, on principles of equity it could not be denied that the cestui que trust would have been entitled to call upon the trustee to band over those shares to him on receipt of the amount spent by the trustee; but if the trustee of his own volition is not prepared to obtain those shares in his own name, it is difficult to see on what principle of law or equity he can be forced to make an application for obtaining those shares in his own name, and then pass them over to the cestui que trust after obtaining the amount spent by him or after being otherwise fully indemnified in respect of the payments made or to be made, or liabilities incurred or to be incurred in future. It is difficult to conceive any principle of equity which obliges a person in the position of a constructive trustee in respect of X number of shares to also become a constructive trustee in respect of an additional, say, Y number of shares and thus become a trustee of X plus Y shares. Such a burden is not a necessary consequence or an incident of the original transaction of purchase and sale of shares or of the legal relationship of trustee and cestui que trust thusview can be sustained on the intelligible principle that the transferor as a constructive trustee in respect of the shares sold by him cannot retain any benefit himself of the new issue which is annexed to the shares sold by him and if any benefit arises out of that offer made under Section 105-C, that benefit must go to the beneficiary, but more than that the beneficiary is not entitled to call upon the trustee to doMr. Pathak reiterated the argument that had been accepted by the High Court that if the only duty of Reddy was to transfer the offer made to him under Section 105-C to Sir Padampat after signing the renunciation, then in that case Sir Padampat could not get the full advantage of that offer because in that event the directors were not bound to allot the shares to the person in whose favour they have been renounced by the shareholder, while on an application made by the shareholder they were bound to allot him the shares offered. That disadvantage is certainly there but it has to be borne in mind that the relationship of constructive trustee and cestui que trust created on principles of equity cannot be extended ad infinitum in respect of all future acquisitions of rights annexed to the shares sold which acquisitions may involve not only rights but liabilities and obligations which the constructive trustee may not be prepared to undertake, and in this situation the cestui que trust may not be able to get all the benefits of the fresh incident annexed to the ownership of the shares that he had purchased. He himself may be blamable for the loss that he may have thus to suffer by his not having made an application in time for getting himself registered on the register of members and for not having taken proper steps in law for getting his transfer recognized by the company if the request made by him has already been refused by the company. The equitable principle on the basis of which the legal relationship between the transferor and the transferee arises cannot be worker in a manner so as to prejudice the position of the constructive trustee and made him an accounting party in respect of all privileges or fresh offers that may be annexed to the shares sold for all time to comeMr. Pathak urged that his client was prepared not only to pay the application money and the allotment money to the trustee but was further prepared to indemnify him against any future calls on those shares. It has to be remembered that even the original 484 shares sold by Reddy to Sir Padampat were partly paid up shares and Reddy was liable to pay the amount of any call made on those shares, subject to being indemnified when the time arose by Sir Padampat for the amount paid on those shares. If Mr. Pathaks convention is accepted, then Reddy will also become further liable for future calls on the new 384 shares. He would be entitled only to claim indemnity when an occasion arose. It is well settled that a trustee is not entitled to claim indemnity till he suffers an injury for which he has to be indemnified. But the fact remains that the liability to pay calls is for the time being his liability and not that of the cestui que trust. Once his name is entered on the register of shareholders, a mere right to claim indemnity may, in a case like the present, when the time to claim it arises, prove to be merely illusory. The shares may go down in value, the company may go in liquidation, or the financial position of the equitable owner of the shares maythus hold that Sir Padampat was not entitled to call upon Reddy to make an application in his own name for the acquisition of the newly issued shares by investing his own money in the first instance and then recovering it from Sir Padampat or by signing the application form and sending it to Sir Padampat for acquiring the shares in his name. All that he was entitled to was to call upon him to send him the renunciation form. This Reddy was prepared to do and offered to do so provided the names of all the persons in whose favour renunciation had to be made were disclosed to him. Admittedly this was never done and Sir Padampat could not gain his object by merely having the renunciation form, because the directors of the company in the circumstances of this case would never have granted his application, if made in his own name on the basis of the renunciation form signed by Reddy. Sir Padampats or the receivers suit therefore in this view of the case could not have been decreedOn the view expressed above, both the suits must fail. If Sir Padampat had no right to call upon the trustee to buy the newly offered shares in his own name for his benefit, a fortiori, the receiver appointed by the court had also no such right, and on this short ground the claim put forward in both the suits has to beare further of the opinion that even if it was held that Reddy was under a duty to sign the application form and the renunciation form and send them over to Sir Padampat to enable the latter to obtain the newly offered shares in Reddys name, the requisition that was made on his behalf directing the trustee to purchase these shares and to exercise the option was ineffective and inadequate. On the basis of that requisition, it was not possible for the trustee to carry out the mandate of the cestui que trust, and, that being so, on this ground also, the plaintiff was disentitled to relief in the twoPathak argued that the plaintiff was entitled to reliefs (a) and (b) both in his suit as well as in the receivers suit and that the receivers suit was wrongly dismissed by the High Court. We are unable to agree. In our opinion, the High Court rightly held that the receiver appointed in the suit of Sir Padampat could not acquire the newly issued shares in his name. That privilege was conferred by Section 105-C only on a person whose name was on the register of members. The receivers name admittedly was not in the register and the company was not bound to entertain that application. Mr. Pathak argued that that may be so but the receiver was not making an application in his individual right but he had been armed by the court with power to apply in the right of the defendant Reddy. The fact however is that the receiver made the application in his own name. Even if Mr. Pathaks contention is right the company was no party to the suit filed by Sir Padampat against Reddy and that being so, no order could be issued to the company in that suit to recognize the receiver as a shareholder in place of Reddy. The matter might have been different if the company was a party to the suit and was ordered by the court to register the receivers to name in place of Reddys for the 484 shares purchased by Sir Padampat and was also ordered to issue new shares in the name of the receiver. It is not necessary for us to offer any final opinion on the question whether the court would have been within its right to direct his name to be included in the register, even if the company was impleaded in the suit filed by Sir Padampat against Reddy. We are however quite clear that the company not having been impleaded in that suit, it was not bound to issue the new shares in the name of a person whose name was not already in the register of members even if he represented a person whose name was already in the register. The High Court was thus right in dismissing the receivers suit. We are also of the opinion that the appellate Bench of the High Court was also right when it declined to grant reliefs (a) and (b) of the plant to Sirseems to have been overlooked that if sanction to issue new capital was somehow obtained, that capital would also have to be distributed as directed by Section 105-C and could not be allotted by the directors in favour of any particular shareholder. In the altered situation that arose after the institution of the suit, if the plaintiff succeeded, the only relief that could be granted to him was the relief of damages. We are however unable to grant the relief to the plaintiff in view of our finding that Reddy could not be compelled as constructive trustee to buy new shares in his own name for the cestui que trust and further in view of our finding that even if he could be compelled to acquire those shares in his own name for the cestui que trust he could not be said to have defaulted in his duty in carrying out the directions of the cestui que trust as in this case no proper and valid requisition was made by the cestui que trust on the trustee for the acquisition of those shares. The plaintiffs in the two suits are therefore not entitled to any relief
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up the right attitude by enquiring as to who the real beneficiary was and to be satisfied by the production of the relative transfer forms. Now, if this had been the only attitude of Mr. Reddy much might have been said in his favour. But unfortunately in this very letter Reddy clearly declined any liability or obligation upon him to apply for these shares on behalf of his beneficiary. Whether he knew that his purchaser was Sir Padampat or not, as the learned Judge has held, or whether there is force in Sir Jamshedjis contention that Messrs. Craigie, Blunt and Caroe referred to the purchasers as Sir Padampat and others, the fact remains that Reddy did not accept his liability as a trustee and then agreed to discharge that liability provided he was satisfied as to who his purchaser was. He only wanted to be satisfied about his purchaser in order to send to him the letter to renunciation. That was the only question on which he wanted to be satisfied. In view of the attitude taken up by Reddy the plaintiff had no other course open to him except to file the suit, and, therefore, in our opinion the learned Judge was right when he came to the conclusion that the plaintiff was entitled to the relief he had claimed."We have not been able to appreciate this line of thought. The attitude adopted by Reddy could not cure the defects in the requisition alleged to have been made on behalf of the plaintiff. If the directions given to the trustee were of an inconclusive nature, and were in law ineffective, then the trustee could not be mulcted in damages for not obeying them, even if his attitude was not what it should have been. The plaintiff is not entitled to damages, unless and until he proves that he made a proper and effective demand on the trustee and this the trustee failed to carry out. On this ground also, both the suits are bound to fail18. Mr. Pathak argued that the plaintiff was entitled to reliefs (a) and (b) both in his suit as well as in the receivers suit and that the receivers suit was wrongly dismissed by the High Court. We are unable to agree. In our opinion, the High Court rightly held that the receiver appointed in the suit of Sir Padampat could not acquire the newly issued shares in his name. That privilege was conferred by Section 105-C only on a person whose name was on the register of members. The receivers name admittedly was not in the register and the company was not bound to entertain that application. Mr. Pathak argued that that may be so but the receiver was not making an application in his individual right but he had been armed by the court with power to apply in the right of the defendant Reddy. The fact however is that the receiver made the application in his own name. Even if Mr. Pathaks contention is right the company was no party to the suit filed by Sir Padampat against Reddy and that being so, no order could be issued to the company in that suit to recognize the receiver as a shareholder in place of Reddy. The matter might have been different if the company was a party to the suit and was ordered by the court to register the receivers to name in place of Reddys for the 484 shares purchased by Sir Padampat and was also ordered to issue new shares in the name of the receiver. It is not necessary for us to offer any final opinion on the question whether the court would have been within its right to direct his name to be included in the register, even if the company was impleaded in the suit filed by Sir Padampat against Reddy. We are however quite clear that the company not having been impleaded in that suit, it was not bound to issue the new shares in the name of a person whose name was not already in the register of members even if he represented a person whose name was already in the register. The High Court was thus right in dismissing the receivers suit. We are also of the opinion that the appellate Bench of the High Court was also right when it declined to grant reliefs (a) and (b) of the plant to Sir Padampat. The sanction given to the company to issue new capital had lapsed long before BHAGWATI J. granted reliefs (a) and (b) to the plaintiff. It was an extraordinary procedure in a civil suit to direct a company which was no party to the original suit to obtain fresh sanction for the issue of new shares and then allot them to the plaintiff. It seems to have been overlooked that if sanction to issue new capital was somehow obtained, that capital would also have to be distributed as directed by Section 105-C and could not be allotted by the directors in favour of any particular shareholder. In the altered situation that arose after the institution of the suit, if the plaintiff succeeded, the only relief that could be granted to him was the relief of damages. We are however unable to grant the relief to the plaintiff in view of our finding that Reddy could not be compelled as constructive trustee to buy new shares in his own name for the cestui que trust and further in view of our finding that even if he could be compelled to acquire those shares in his own name for the cestui que trust he could not be said to have defaulted in his duty in carrying out the directions of the cestui que trust as in this case no proper and valid requisition was made by the cestui que trust on the trustee for the acquisition of those shares. The plaintiffs in the two suits are therefore not entitled to any relief
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register of shareholders, a mere right to claim indemnity may, in a case like the present, when the time to claim it arises, prove to be merely illusory. The shares may go down in value, the company may go in liquidation, or the financial position of the equitable owner of the shares maythus hold that Sir Padampat was not entitled to call upon Reddy to make an application in his own name for the acquisition of the newly issued shares by investing his own money in the first instance and then recovering it from Sir Padampat or by signing the application form and sending it to Sir Padampat for acquiring the shares in his name. All that he was entitled to was to call upon him to send him the renunciation form. This Reddy was prepared to do and offered to do so provided the names of all the persons in whose favour renunciation had to be made were disclosed to him. Admittedly this was never done and Sir Padampat could not gain his object by merely having the renunciation form, because the directors of the company in the circumstances of this case would never have granted his application, if made in his own name on the basis of the renunciation form signed by Reddy. Sir Padampats or the receivers suit therefore in this view of the case could not have been decreedOn the view expressed above, both the suits must fail. If Sir Padampat had no right to call upon the trustee to buy the newly offered shares in his own name for his benefit, a fortiori, the receiver appointed by the court had also no such right, and on this short ground the claim put forward in both the suits has to beare further of the opinion that even if it was held that Reddy was under a duty to sign the application form and the renunciation form and send them over to Sir Padampat to enable the latter to obtain the newly offered shares in Reddys name, the requisition that was made on his behalf directing the trustee to purchase these shares and to exercise the option was ineffective and inadequate. On the basis of that requisition, it was not possible for the trustee to carry out the mandate of the cestui que trust, and, that being so, on this ground also, the plaintiff was disentitled to relief in the twoPathak argued that the plaintiff was entitled to reliefs (a) and (b) both in his suit as well as in the receivers suit and that the receivers suit was wrongly dismissed by the High Court. We are unable to agree. In our opinion, the High Court rightly held that the receiver appointed in the suit of Sir Padampat could not acquire the newly issued shares in his name. That privilege was conferred by Section 105-C only on a person whose name was on the register of members. The receivers name admittedly was not in the register and the company was not bound to entertain that application. Mr. Pathak argued that that may be so but the receiver was not making an application in his individual right but he had been armed by the court with power to apply in the right of the defendant Reddy. The fact however is that the receiver made the application in his own name. Even if Mr. Pathaks contention is right the company was no party to the suit filed by Sir Padampat against Reddy and that being so, no order could be issued to the company in that suit to recognize the receiver as a shareholder in place of Reddy. The matter might have been different if the company was a party to the suit and was ordered by the court to register the receivers to name in place of Reddys for the 484 shares purchased by Sir Padampat and was also ordered to issue new shares in the name of the receiver. It is not necessary for us to offer any final opinion on the question whether the court would have been within its right to direct his name to be included in the register, even if the company was impleaded in the suit filed by Sir Padampat against Reddy. We are however quite clear that the company not having been impleaded in that suit, it was not bound to issue the new shares in the name of a person whose name was not already in the register of members even if he represented a person whose name was already in the register. The High Court was thus right in dismissing the receivers suit. We are also of the opinion that the appellate Bench of the High Court was also right when it declined to grant reliefs (a) and (b) of the plant to Sirseems to have been overlooked that if sanction to issue new capital was somehow obtained, that capital would also have to be distributed as directed by Section 105-C and could not be allotted by the directors in favour of any particular shareholder. In the altered situation that arose after the institution of the suit, if the plaintiff succeeded, the only relief that could be granted to him was the relief of damages. We are however unable to grant the relief to the plaintiff in view of our finding that Reddy could not be compelled as constructive trustee to buy new shares in his own name for the cestui que trust and further in view of our finding that even if he could be compelled to acquire those shares in his own name for the cestui que trust he could not be said to have defaulted in his duty in carrying out the directions of the cestui que trust as in this case no proper and valid requisition was made by the cestui que trust on the trustee for the acquisition of those shares. The plaintiffs in the two suits are therefore not entitled to any relief
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S. Kumar Vs. Institute of Constitutional and Parliamentary Studies
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requiring him to hand over charge of the Library. The appellant was also served with a notice of the same date, along with a copy of the enquiry report, requiring him to show cause why he should not be dismissed from service. The appellant then filed a suit for declaration and injunction in the Court of the learned Subordinate Judge, Delhi on November 15, 1975 and obtained an ex-parte order restraining the Institute and its officers from dismissing him. When the matter came on for final disposal on August 24, 1976 the learned Subordinate Judge dismissed the suit without trial on the preliminary point that it was not maintainable. He expressed the view that the appellants remedy lay in damages and not in a suit for declaration. The appellant appealed, and during the pendency of the appeal the learned Senior Subordinate Judge passed an order dated August 28, 1976 declining to grant an-ex-parte stay order. On September 3, 1976 the Institute filed a reply stating that the stay application had become infructuous as the appellant had been dismissed from service. The appeal filed by the appellant was dismissed by the learned Senior Subordinate Judge on January 22, 1977, who endorsed the view of the trial court that the remedy of the appellant lay in damages instead of by a suit for declaration. The appellant fil ed a second appeal in the High Court of Delhi. During the pendency of the appeal he moved an application for amendment of the plaint. On April 18, 1980 the High Court rejected the amendment application and also dismissed the second appeal. And now this appeal.The appellant attempted to place his case before us on its merits, but strong objection was taken by the respondents to the maintainability of the appeal on the ground that the order dismissing the appellant had not been challenged by him, that the order had become final and that the continued existence of the order constituted an impediment to the consideration of the reliefs claimed in the suit. The appellant strenuously urged that the appeal continues to survive, and he attempted to establish that among the reliefs claimed in his amendment application filed in the High Court he had included a relief for declaring the order of dismissal invalid and, he said, the amendment had been wrongly refused. Shortly before concluding his submissions in this Court, he filed an application in this appeal praying for amendment of the plaint by the inclusion of such relief.3. We have examined the record of the case and we find that at no stage upto the dismissal of his second appeal did the appellant attempt to include a relief in his plaint against the order of dismissal. On the contrary, the reliefs sought to be included through the amendment application filed in the High Court proceeded on the assumption that the appellant was still continuing in service, for we find that one of the reliefs specifically mentioned in the amendment application was:"(c) "A decree for perpetual injuction he granted to the plaintiff against the defendants, restraining the defendants from dismissing the plaintiff from the post of Assistant Director and Incharge of the Library of the Institute and taking any action on the basis of the enquiry report or show-cause not ice and holding any second enquiry on the basis of the second charge-sheet or taking any action whatsoever in these matters."Plainly, once an order of dismissal was passed against him, a different cause of action arose and it was not possible for the appellant to maintain the proceeding on the original cause of action. The original reliefs claimed in the suit consisted of a decree of declaration that the proceedings taken against the appellant upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual injunction restraining the respondents from dismissing the appellant.4. The appellant contended that the order of dismissal had not been served on him and, therefore, no occasion had arisen for challenging the order. It was alleged that an unsigned copy of an order of dismissal had been received by him and nothing more. We cannot accept the contention, because we find ample evidence on the record indicating that the appellant treated the order served on him as an effective order and that otherwise also he was aware that he had been dismissed. Indeed, he took proceedings in court charging the respondents with contempt of court for passing an order of dismiss al while his suit was still pending.5. As regards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed. No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint. It has also not been established by the appellant that if a suit is filed now against the order of dismissal it would be within the period of limitation.6. Upon the aforesaid considerations, we are of opinion that the present appeal is liable to be dismissed as not maintainable.We find it unnecessary to enter into the question whether the charge framed against the appellant, on the basis of which he has been dismissed, stands proved. We express no opinion in the matter.7. While concluding, we may record that the appellant claims arrears of pay from the Institute. We believe it would be just and proper that the Institute should examine the claim of the appellant, and if it finds that any amount is due to the appellant it should make payment thereof with all reasonable expedition. It is hoped that in this regard the Institute will not seek the advantage of any technical objection, including the period of limitation.8.
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0[ds]t contended that the order of dismissal had not been served on him and, therefore, no occasion had arisen for challenging the order. It was alleged that an unsigned copy of an order of dismissal had been received by him and nothing more.We cannot accept the contention, because we find ample evidence on the record indicating that the appellant treated the order served on him as an effective order and that otherwise also he was aware that he had been dismissed. Indeed, he took proceedings in court charging the respondents with contempt of court for passing an order of dismiss al while his suit was stillregards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed. No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint. It has also not been established by the appellant that if a suit is filed now against the order of dismissal it would be within the period ofthe aforesaid considerations, we are of opinion that the present appeal is liable to be dismissed as not maintainable.We find it unnecessary to enter into the question whether the charge framed against the appellant, on the basis of which he has been dismissed, stands proved. We express no opinion in theconcluding, we may record that the appellant claims arrears of pay from the Institute. We believe it would be just and proper that the Institute should examine the claim of the appellant, and if it finds that any amount is due to the appellant it should make payment thereof with all reasonable expedition. It is hoped that in this regard the Institute will not seek the advantage of any technical objection, including the period of limitation.
| 0 | 1,362 | 367 |
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requiring him to hand over charge of the Library. The appellant was also served with a notice of the same date, along with a copy of the enquiry report, requiring him to show cause why he should not be dismissed from service. The appellant then filed a suit for declaration and injunction in the Court of the learned Subordinate Judge, Delhi on November 15, 1975 and obtained an ex-parte order restraining the Institute and its officers from dismissing him. When the matter came on for final disposal on August 24, 1976 the learned Subordinate Judge dismissed the suit without trial on the preliminary point that it was not maintainable. He expressed the view that the appellants remedy lay in damages and not in a suit for declaration. The appellant appealed, and during the pendency of the appeal the learned Senior Subordinate Judge passed an order dated August 28, 1976 declining to grant an-ex-parte stay order. On September 3, 1976 the Institute filed a reply stating that the stay application had become infructuous as the appellant had been dismissed from service. The appeal filed by the appellant was dismissed by the learned Senior Subordinate Judge on January 22, 1977, who endorsed the view of the trial court that the remedy of the appellant lay in damages instead of by a suit for declaration. The appellant fil ed a second appeal in the High Court of Delhi. During the pendency of the appeal he moved an application for amendment of the plaint. On April 18, 1980 the High Court rejected the amendment application and also dismissed the second appeal. And now this appeal.The appellant attempted to place his case before us on its merits, but strong objection was taken by the respondents to the maintainability of the appeal on the ground that the order dismissing the appellant had not been challenged by him, that the order had become final and that the continued existence of the order constituted an impediment to the consideration of the reliefs claimed in the suit. The appellant strenuously urged that the appeal continues to survive, and he attempted to establish that among the reliefs claimed in his amendment application filed in the High Court he had included a relief for declaring the order of dismissal invalid and, he said, the amendment had been wrongly refused. Shortly before concluding his submissions in this Court, he filed an application in this appeal praying for amendment of the plaint by the inclusion of such relief.3. We have examined the record of the case and we find that at no stage upto the dismissal of his second appeal did the appellant attempt to include a relief in his plaint against the order of dismissal. On the contrary, the reliefs sought to be included through the amendment application filed in the High Court proceeded on the assumption that the appellant was still continuing in service, for we find that one of the reliefs specifically mentioned in the amendment application was:"(c) "A decree for perpetual injuction he granted to the plaintiff against the defendants, restraining the defendants from dismissing the plaintiff from the post of Assistant Director and Incharge of the Library of the Institute and taking any action on the basis of the enquiry report or show-cause not ice and holding any second enquiry on the basis of the second charge-sheet or taking any action whatsoever in these matters."Plainly, once an order of dismissal was passed against him, a different cause of action arose and it was not possible for the appellant to maintain the proceeding on the original cause of action. The original reliefs claimed in the suit consisted of a decree of declaration that the proceedings taken against the appellant upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual injunction restraining the respondents from dismissing the appellant.4. The appellant contended that the order of dismissal had not been served on him and, therefore, no occasion had arisen for challenging the order. It was alleged that an unsigned copy of an order of dismissal had been received by him and nothing more. We cannot accept the contention, because we find ample evidence on the record indicating that the appellant treated the order served on him as an effective order and that otherwise also he was aware that he had been dismissed. Indeed, he took proceedings in court charging the respondents with contempt of court for passing an order of dismiss al while his suit was still pending.5. As regards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed. No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint. It has also not been established by the appellant that if a suit is filed now against the order of dismissal it would be within the period of limitation.6. Upon the aforesaid considerations, we are of opinion that the present appeal is liable to be dismissed as not maintainable.We find it unnecessary to enter into the question whether the charge framed against the appellant, on the basis of which he has been dismissed, stands proved. We express no opinion in the matter.7. While concluding, we may record that the appellant claims arrears of pay from the Institute. We believe it would be just and proper that the Institute should examine the claim of the appellant, and if it finds that any amount is due to the appellant it should make payment thereof with all reasonable expedition. It is hoped that in this regard the Institute will not seek the advantage of any technical objection, including the period of limitation.8.
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t contended that the order of dismissal had not been served on him and, therefore, no occasion had arisen for challenging the order. It was alleged that an unsigned copy of an order of dismissal had been received by him and nothing more.We cannot accept the contention, because we find ample evidence on the record indicating that the appellant treated the order served on him as an effective order and that otherwise also he was aware that he had been dismissed. Indeed, he took proceedings in court charging the respondents with contempt of court for passing an order of dismiss al while his suit was stillregards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed. No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint. It has also not been established by the appellant that if a suit is filed now against the order of dismissal it would be within the period ofthe aforesaid considerations, we are of opinion that the present appeal is liable to be dismissed as not maintainable.We find it unnecessary to enter into the question whether the charge framed against the appellant, on the basis of which he has been dismissed, stands proved. We express no opinion in theconcluding, we may record that the appellant claims arrears of pay from the Institute. We believe it would be just and proper that the Institute should examine the claim of the appellant, and if it finds that any amount is due to the appellant it should make payment thereof with all reasonable expedition. It is hoped that in this regard the Institute will not seek the advantage of any technical objection, including the period of limitation.
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Assistant Controller of Estate-Duty, Hyderabad Vs. Nawab Sir Mir Osman Ali Khan Bahadur, H. E. H. The Nizam of Hyderabad, and Others
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According to him any matter of fact or law which may come to the notice of the appellant after the making of assessment including a finding by a higher authority would be " information " for the purpose and within the meaning of section 59. It is urged that the appellant bad not taken action on mere change of his opinion. The predecessor in office of the appellant had adopted a wrong mode of valuation and the opinion expressed by the Central Board of Revenue about the correct mode was " information " which led to the appellant entertaining a reasonable belief that the property assessed to estate duty had been undervalued. Reliance has been placed on a number of decisions in which the meaning of the word " information " in parallel provisions in the Income-tax Act, 1922, and other enactments came up for consideration. In Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, it was held that the word " information " in section 34(1)(b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions. The following observation may be reproduced with advantage:" If the word information used in any other provision of the Act denotes information as to facts or particulars, that would not necessarily determine the meaning of the said word in section 34(1)(b). The denotation of the said word would naturally depend on the context of the particular provisions in which it is used. It is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise the Income-tax Officers orders and to rectify mistakes respectively and so it would be legitimate to construe the word information in section 34(1)(b) strictly and to confine it to information in regard to facts or particulars. This argument also is not valid. If the word information in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B and 35In Commissioner of Income-tax v. A. Raman & Co., it was said that the expression " information " in the context of section 147(b) of the Income-tax Act, 1961, must mean instruction or knowledge derived from extraneous sources concerning facts or particulars or as to law relating to a matter bearing on the assessment. The Bombay High Court, in a recent decision, commissioner of Income-tax v. A. J. Zaveri, after a discussion of the relevant case law, came to the conclusion that " information " within the meaning of section 34(1)(b) of the Income-tax Act, 1922, may consist of a different view taken of the facts on the record by a higher Tribunal on appeal from the Income-tax Officers decision. In that case it was held that the decision of the Income-tax Appellate Tribunal constituted " information " to the Income-tax Officer as to which of the assessable parties was chargeable for a particular item of income. In the latest decision of this court in R. B. Bansilal Abirchand Firm v. Commissioner of Income-tax, when the first assessment of the assessees income was made by the Income-tax Officer the latters information was that the assessee was a partner in another concern known as Bisesar House and that the interest had been received from that concern in the capacity of a partner. It was only after the Tribunal and the High Court gave their decision in the proceedings for assessment to tax of Bisesar House that the Income-tax Officer came to know that the interest was not being received by the assessee-firm in the capacity of a partner but in its capacity of a financier advancing monies to Bisesar House as a banker. It was held that the Income-tax Officer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(1)(b). The correct position had been brought to his notice by the decision of the Tribunal and the High Court and that must be held to be " information " as a consequence of which he came to believe that the provisions of section 34(1)(b) were attractedThe learned counsel for the respondents in the presence of the above state of law, as settled by this court, sought to contend that the question of valuation of the securities was neither purely one of fact nor of law and was a mixed question of law and fact and, therefore, it could not fall within the rule laid down in the aforesaid decisions.3. We are unable to agree. When the expression " information " is understood in the sense of instruction or knowledge derived from an external source concerning facts or particulars or as to law relating to a matter bearing on the assessment, it is difficult to see how determination of valuation for the purpose of assessment of estate duty would not squarely fall within the meaning of the expression " information " in the context in which it occurs in section 59 of the Act. It has not been disputed, and can indeed not be disputed, that the provisions of section 59 are in pari materia with section 34 of the Income-tax Act, 1922, and section 147 of the Income-tax Act, 1961. The opinion expressed by the Board of Revenue, in the present case, as to valuation, was clearly " information " in the sense in which that expres. sion has been held to have been used in these enactments. The view of the High Court on this point cannot be sustained for the aforesaid reasons4. The Division Bench did not decide the first point which related to the applicability of section 59 to assessments completed before the amendment Act came into force.
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1[ds]s then contended that sections 33B and 35 confer ample powers on the specified authorities to revise thes orders and to rectify mistakes respectively and so it would be legitimate to construe the word information in section 34(1)(b) strictly and to confine it to information in regard to facts or particulars.This argument also is not valid. If the word information in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B andthe latest decision of this court in R. B. Bansilal Abirchand Firm v. Commissioner ofwhen the first assessment of the assessees income was made by theOfficer the latters information was that the assessee was a partner in another concern known as Bisesar House and that the interest had been received from that concern in the capacity of a partner. It was only after the Tribunal and the High Court gave their decision in the proceedings for assessment to tax of Bisesar House that theOfficer came to know that the interest was not being received by thein the capacity of a partner but in its capacity of a financier advancing monies to Bisesar House as a banker. It was held that theOfficer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(1)(b). The correct position had been brought to his notice by the decision of the Tribunal and the High Court and that must be held to be " information " as a consequence of which he came to believe that the provisions of section 34(1)(b) wereWe are unable to agree. When the expression " information " is understood in the sense of instruction or knowledge derived from an external source concerning facts or particulars or as to law relating to a matter bearing on the assessment, it is difficult to see how determination of valuation for the purpose of assessment of estate duty would not squarely fall within the meaning of the expression " information " in the context in which it occurs in section 59 of the Act. It has not been disputed, and can indeed not be disputed, that the provisions of section 59 are in pari materia with section 34 of theAct, 1922, and section 147 of theAct, 1961. The opinion expressed by the Board of Revenue, in the present case, as to valuation, was clearly " information " in the sense in which that expres. sion has been held to have been used in these enactments. The view of the High Court on this point cannot be sustained for the aforesaid reasons4. The Division Bench did not decide the first point which related to the applicability of section 59 to assessments completed before the amendment Act came into force.
| 1 | 2,201 | 552 |
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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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According to him any matter of fact or law which may come to the notice of the appellant after the making of assessment including a finding by a higher authority would be " information " for the purpose and within the meaning of section 59. It is urged that the appellant bad not taken action on mere change of his opinion. The predecessor in office of the appellant had adopted a wrong mode of valuation and the opinion expressed by the Central Board of Revenue about the correct mode was " information " which led to the appellant entertaining a reasonable belief that the property assessed to estate duty had been undervalued. Reliance has been placed on a number of decisions in which the meaning of the word " information " in parallel provisions in the Income-tax Act, 1922, and other enactments came up for consideration. In Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, it was held that the word " information " in section 34(1)(b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions. The following observation may be reproduced with advantage:" If the word information used in any other provision of the Act denotes information as to facts or particulars, that would not necessarily determine the meaning of the said word in section 34(1)(b). The denotation of the said word would naturally depend on the context of the particular provisions in which it is used. It is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise the Income-tax Officers orders and to rectify mistakes respectively and so it would be legitimate to construe the word information in section 34(1)(b) strictly and to confine it to information in regard to facts or particulars. This argument also is not valid. If the word information in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B and 35In Commissioner of Income-tax v. A. Raman & Co., it was said that the expression " information " in the context of section 147(b) of the Income-tax Act, 1961, must mean instruction or knowledge derived from extraneous sources concerning facts or particulars or as to law relating to a matter bearing on the assessment. The Bombay High Court, in a recent decision, commissioner of Income-tax v. A. J. Zaveri, after a discussion of the relevant case law, came to the conclusion that " information " within the meaning of section 34(1)(b) of the Income-tax Act, 1922, may consist of a different view taken of the facts on the record by a higher Tribunal on appeal from the Income-tax Officers decision. In that case it was held that the decision of the Income-tax Appellate Tribunal constituted " information " to the Income-tax Officer as to which of the assessable parties was chargeable for a particular item of income. In the latest decision of this court in R. B. Bansilal Abirchand Firm v. Commissioner of Income-tax, when the first assessment of the assessees income was made by the Income-tax Officer the latters information was that the assessee was a partner in another concern known as Bisesar House and that the interest had been received from that concern in the capacity of a partner. It was only after the Tribunal and the High Court gave their decision in the proceedings for assessment to tax of Bisesar House that the Income-tax Officer came to know that the interest was not being received by the assessee-firm in the capacity of a partner but in its capacity of a financier advancing monies to Bisesar House as a banker. It was held that the Income-tax Officer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(1)(b). The correct position had been brought to his notice by the decision of the Tribunal and the High Court and that must be held to be " information " as a consequence of which he came to believe that the provisions of section 34(1)(b) were attractedThe learned counsel for the respondents in the presence of the above state of law, as settled by this court, sought to contend that the question of valuation of the securities was neither purely one of fact nor of law and was a mixed question of law and fact and, therefore, it could not fall within the rule laid down in the aforesaid decisions.3. We are unable to agree. When the expression " information " is understood in the sense of instruction or knowledge derived from an external source concerning facts or particulars or as to law relating to a matter bearing on the assessment, it is difficult to see how determination of valuation for the purpose of assessment of estate duty would not squarely fall within the meaning of the expression " information " in the context in which it occurs in section 59 of the Act. It has not been disputed, and can indeed not be disputed, that the provisions of section 59 are in pari materia with section 34 of the Income-tax Act, 1922, and section 147 of the Income-tax Act, 1961. The opinion expressed by the Board of Revenue, in the present case, as to valuation, was clearly " information " in the sense in which that expres. sion has been held to have been used in these enactments. The view of the High Court on this point cannot be sustained for the aforesaid reasons4. The Division Bench did not decide the first point which related to the applicability of section 59 to assessments completed before the amendment Act came into force.
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1
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s then contended that sections 33B and 35 confer ample powers on the specified authorities to revise thes orders and to rectify mistakes respectively and so it would be legitimate to construe the word information in section 34(1)(b) strictly and to confine it to information in regard to facts or particulars.This argument also is not valid. If the word information in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B andthe latest decision of this court in R. B. Bansilal Abirchand Firm v. Commissioner ofwhen the first assessment of the assessees income was made by theOfficer the latters information was that the assessee was a partner in another concern known as Bisesar House and that the interest had been received from that concern in the capacity of a partner. It was only after the Tribunal and the High Court gave their decision in the proceedings for assessment to tax of Bisesar House that theOfficer came to know that the interest was not being received by thein the capacity of a partner but in its capacity of a financier advancing monies to Bisesar House as a banker. It was held that theOfficer had not acted on his own initiative or on the change of his own opinion when he took proceedings under section 34(1)(b). The correct position had been brought to his notice by the decision of the Tribunal and the High Court and that must be held to be " information " as a consequence of which he came to believe that the provisions of section 34(1)(b) wereWe are unable to agree. When the expression " information " is understood in the sense of instruction or knowledge derived from an external source concerning facts or particulars or as to law relating to a matter bearing on the assessment, it is difficult to see how determination of valuation for the purpose of assessment of estate duty would not squarely fall within the meaning of the expression " information " in the context in which it occurs in section 59 of the Act. It has not been disputed, and can indeed not be disputed, that the provisions of section 59 are in pari materia with section 34 of theAct, 1922, and section 147 of theAct, 1961. The opinion expressed by the Board of Revenue, in the present case, as to valuation, was clearly " information " in the sense in which that expres. sion has been held to have been used in these enactments. The view of the High Court on this point cannot be sustained for the aforesaid reasons4. The Division Bench did not decide the first point which related to the applicability of section 59 to assessments completed before the amendment Act came into force.
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Central Potteries Ltd Vs. State Of Maharashtra & Others
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registration certificate on July 21, 1947 had been cured. He also further held that the liability of the appellant to pay sales tax was not affected by the invalidity of the registration under S. 8. In the result he dismissed the suit with costs.4. Against this decision appellant preferred an appeal to the High Court of Nagpur and that was heard by a Bench of the Bombay High Court to which it stood transferred under the States Reorganisation Act. The learned Judges held that the question whether the registration of the appellant as dealer under S. 8 of the Act was valid or not did not call for a decision as even if it was invalid that did not affect its liability to be assessed to sales tax and in that view they dismissed the appeal with costs but granted a certificate under S. 109, C. P. C. and Art. 132(2) of the Constitution.5. In our judgment the High Court is clearly correct in its view that the appellant was liable to pay the tax under the Act irrespective of whether the registration under S. 8 was valid or not. That liability arose under S. 4 which is the charging section. Section 4 is as follows:"4(1)(a). In Madhya Pradesh excluding the merged territories every dealer whose turnover during the year preceding the commencement of this act exceeded the taxable quantum shall be liable to pay tax in accordance with the provisions of this Act on all sales effected after the commencement of this Act."This liability is not conditional on the registration of the dealer under S. 8. Section 8(1) enacts that "no dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered as such and possesses a registration certificate". Section 11(1) provides that "if the Commissioner is satisfied that returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the dealer on them". These provisions do not, to any extent, affect the substantive liability to be assessed to tax which is imposed by S. 4.A dealer who fails to get himself registered would be hit by S. 8(1) and may lose the benefit conferred by S. 11(1) but the Act does not put him in a better position than a dealer who has got himself registered under S. 8(1) and absolve him from his liability to pay tax under S. 4. The position of the dealer who has obtained a certificate of registration which turns out to be invalid cannot on principle be distinguished from that of one who has failed to obtain a certificate.6. It was argued for the appellant that it would make a difference in the procedure prescribed for making assessment whether a dealer was registered or not. It was said that under S. 10(1) while every registered dealer is under an obligation to make returns for the purposes of assessment, a dealer who is not registered becomes liable to send the return only if he is required to do so by the Commissioner by notice served in the prescribed manner and Rule 22 which has been framed for carrying out the purpose of S. 10(1) provides that if the Commissioner is of opinion that a dealer other than a registered dealer is liable to pay tax, he may send a notice to him in a form prescribed therein, requiring him to furnish returns. It is contended that the jurisdiction of the Sales Tax Officer to take proceedings for assessment with respect to non-registered dealers depends, on the issue of a notice such as is prescribed by S. 10 and Rule 22 and that as no such notice had been issued in the case of the appellant, the assessment proceedings certificate is invalid. We see no force in this contention. The taxing authorities derive their jurisdiction to make assessments under Ss. 3 and 11 of the Act, and not under S. 10, which is purely procedural. The appellant had itself, acting under S. 10 (1), been submitting voluntarily returns on which the assessments had been made and it is now idle for it to contend that the proceedings taken on its own returns are without jurisdiction.7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under S 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of as passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that S. 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under S. 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the as of tax mad thereunder.8. We should add that S. 21 of the Act bars the jurisdiction of Civil Courts to entertain suits calling in question any orders passed by the authorities under the Act, and in the view which we have taken it is unnecessary to go into the question whether in view of this section the present suit is maintainable.
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0[ds]5. In our judgment the High Court is clearly correct in its view that the appellant was liable to pay the tax under the Act irrespective of whether the registration under S. 8 was valid orliability is not conditional on the registration of the dealer under S. 8. Section 8(1) enacts that "no dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered as such and possesses a registration certificate". Section 11(1) provides that "if the Commissioner is satisfied that returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the dealer on them". These provisions do not, to any extent, affect the substantive liability to be assessed to tax which is imposed by S. 4.A dealer who fails to get himself registered would be hit by S. 8(1) and may lose the benefit conferred by S. 11(1) but the Act does not put him in a better position than a dealer who has got himself registered under S. 8(1) and absolve him from his liability to pay tax under S. 4. The position of the dealer who has obtained a certificate of registration which turns out to be invalid cannot on principle be distinguished from that of one who has failed to obtain asee no force in this contention. The taxing authorities derive their jurisdiction to make assessments under Ss. 3 and 11 of the Act, and not under S. 10, which is purely procedural. The appellant had itself, acting under S. 10 (1), been submitting voluntarily returns on which the assessments had been made and it is now idle for it to contend that the proceedings taken on its own returns are without jurisdiction.7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under S 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of as passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that S. 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under S. 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the as of tax mad thereunder.8. We should add that S. 21 of the Act bars the jurisdiction of Civil Courts to entertain suits calling in question any orders passed by the authorities under the Act, and in the view which we have taken it is unnecessary to go into the question whether in view of this section the present suit is maintainable.
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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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registration certificate on July 21, 1947 had been cured. He also further held that the liability of the appellant to pay sales tax was not affected by the invalidity of the registration under S. 8. In the result he dismissed the suit with costs.4. Against this decision appellant preferred an appeal to the High Court of Nagpur and that was heard by a Bench of the Bombay High Court to which it stood transferred under the States Reorganisation Act. The learned Judges held that the question whether the registration of the appellant as dealer under S. 8 of the Act was valid or not did not call for a decision as even if it was invalid that did not affect its liability to be assessed to sales tax and in that view they dismissed the appeal with costs but granted a certificate under S. 109, C. P. C. and Art. 132(2) of the Constitution.5. In our judgment the High Court is clearly correct in its view that the appellant was liable to pay the tax under the Act irrespective of whether the registration under S. 8 was valid or not. That liability arose under S. 4 which is the charging section. Section 4 is as follows:"4(1)(a). In Madhya Pradesh excluding the merged territories every dealer whose turnover during the year preceding the commencement of this act exceeded the taxable quantum shall be liable to pay tax in accordance with the provisions of this Act on all sales effected after the commencement of this Act."This liability is not conditional on the registration of the dealer under S. 8. Section 8(1) enacts that "no dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered as such and possesses a registration certificate". Section 11(1) provides that "if the Commissioner is satisfied that returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the dealer on them". These provisions do not, to any extent, affect the substantive liability to be assessed to tax which is imposed by S. 4.A dealer who fails to get himself registered would be hit by S. 8(1) and may lose the benefit conferred by S. 11(1) but the Act does not put him in a better position than a dealer who has got himself registered under S. 8(1) and absolve him from his liability to pay tax under S. 4. The position of the dealer who has obtained a certificate of registration which turns out to be invalid cannot on principle be distinguished from that of one who has failed to obtain a certificate.6. It was argued for the appellant that it would make a difference in the procedure prescribed for making assessment whether a dealer was registered or not. It was said that under S. 10(1) while every registered dealer is under an obligation to make returns for the purposes of assessment, a dealer who is not registered becomes liable to send the return only if he is required to do so by the Commissioner by notice served in the prescribed manner and Rule 22 which has been framed for carrying out the purpose of S. 10(1) provides that if the Commissioner is of opinion that a dealer other than a registered dealer is liable to pay tax, he may send a notice to him in a form prescribed therein, requiring him to furnish returns. It is contended that the jurisdiction of the Sales Tax Officer to take proceedings for assessment with respect to non-registered dealers depends, on the issue of a notice such as is prescribed by S. 10 and Rule 22 and that as no such notice had been issued in the case of the appellant, the assessment proceedings certificate is invalid. We see no force in this contention. The taxing authorities derive their jurisdiction to make assessments under Ss. 3 and 11 of the Act, and not under S. 10, which is purely procedural. The appellant had itself, acting under S. 10 (1), been submitting voluntarily returns on which the assessments had been made and it is now idle for it to contend that the proceedings taken on its own returns are without jurisdiction.7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under S 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of as passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that S. 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under S. 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the as of tax mad thereunder.8. We should add that S. 21 of the Act bars the jurisdiction of Civil Courts to entertain suits calling in question any orders passed by the authorities under the Act, and in the view which we have taken it is unnecessary to go into the question whether in view of this section the present suit is maintainable.
### Response:
0
### Explanation:
5. In our judgment the High Court is clearly correct in its view that the appellant was liable to pay the tax under the Act irrespective of whether the registration under S. 8 was valid orliability is not conditional on the registration of the dealer under S. 8. Section 8(1) enacts that "no dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered as such and possesses a registration certificate". Section 11(1) provides that "if the Commissioner is satisfied that returns furnished by a registered dealer in respect of any period are correct and complete, he shall assess the dealer on them". These provisions do not, to any extent, affect the substantive liability to be assessed to tax which is imposed by S. 4.A dealer who fails to get himself registered would be hit by S. 8(1) and may lose the benefit conferred by S. 11(1) but the Act does not put him in a better position than a dealer who has got himself registered under S. 8(1) and absolve him from his liability to pay tax under S. 4. The position of the dealer who has obtained a certificate of registration which turns out to be invalid cannot on principle be distinguished from that of one who has failed to obtain asee no force in this contention. The taxing authorities derive their jurisdiction to make assessments under Ss. 3 and 11 of the Act, and not under S. 10, which is purely procedural. The appellant had itself, acting under S. 10 (1), been submitting voluntarily returns on which the assessments had been made and it is now idle for it to contend that the proceedings taken on its own returns are without jurisdiction.7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under S 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of as passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that S. 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under S. 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the as of tax mad thereunder.8. We should add that S. 21 of the Act bars the jurisdiction of Civil Courts to entertain suits calling in question any orders passed by the authorities under the Act, and in the view which we have taken it is unnecessary to go into the question whether in view of this section the present suit is maintainable.
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SOUTH INDIAN BANK LTD Vs. COMMISSIONER OF INCOME TAX
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retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock- in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits… The learned Judge then considered the implication of Rule 8D of the Rules in the context of Section 14-A(2) of the Act and clarified that before applying the theory of apportionment, the Assessing Officer must record satisfaction on Suo Moto disallowance only in those cases where, the apportionment was done by the assessee. The following is relevant for the purpose of this judgment: 51. ……………….It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. 24. Another important judgment dealing with Section 14A disallowance which merits consideration is Godrej and Boyce Manufacturing Company Ltd. V. DCIT [(2017) 7 SCC 421 .. Here the assessee had access to adequate interest free funds to make investments and the issue pertained to disallowance of expenditure incurred to earn dividend income, which was not forming part of total income of the Assessee. Justice Ranjan Gogoi writing the opinion on behalf of the Division Bench observed that for disallowance of expenditure incurred in earning an income, it is a condition precedent that such income should not be includible in total income of assessee. This Court accordingly concluded that for attracting provisions of Section 14A, the proof of fact regarding such expenditure being incurred for earning exempt income is necessary. The relevant portion of Justice Gogois judgment reads as follow: 36. ……… what cannot be denied is that the requirement for attracting the provisions of Section 14-A (1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income… 25. Proceeding now to another aspect, it is seen that the Central Board of Direct Taxes (CBDT) had issued the Circular no. 18 of 2015 dated 02.11.2015, which had analyzed and then explained that all shares and securities held by a bank which are not bought to maintain Statutory Liquidity Ratio (SLR) are its stock-in-trade and not investments and income arising out of those is attributable, to business of banking. This Circular came to be issued in the aftermath of CIT Vs. Nawanshahar Central Cooperative Bank Ltd. [(2007) 15 SCC 611] / [(2007) 160 TAXMAN 48 (SC)] wherein this Court had held that investments made by a banking concern is part of their banking business. Hence the income earned through such investments would fall under the head Profits & Gains of business. The Punjab and Haryana High Court, in the case of Pr. CIT, vs. State Bank of Patiala 2017 (393) ITR 476 (P&H) while adverting to the CBDT Circular, concluded correctly that shares and securities held by a bank are stock in trade, and all income received on such shares and securities must be considered to be business income. That is why Section 14A would not be attracted to such income. 26. Reverting back to the situation here, the Revenue does not contend that the Assessee Banks had held the securities for maintaining the Statutory Liquidity Ratio (SLR), as mentioned in the circular. In view of this position, when there is no finding that the investments of the Assessee are of the related category, tax implication would not arise against the appellants, from the said circular. 27. The aforesaid discussion and the cited judgments advise this Court to conclude that the proportionate disallowance of interest is not warranted, under Section 14A of Income Tax Act for investments made in tax free bonds/ securities which yield tax free dividend and interest to Assessee Banks in those situations where, interest free own funds available with the Assessee, exceeded their investments. With this conclusion, we unhesitatingly agree with the view taken by the learned ITAT favouring the assessees. 28. The above conclusion is reached because nexus has not been established between expenditure disallowed and earning of exempt income. The respondents as earlier noted, have failed to substantiate their argument that assessee was required to maintain separate accounts. Their reliance on Honda Siel (Supra) to project such an obligation on the assessee, is already negated. The learned counsel for the revenue has failed to refer to any statutory provision which obligate the assessee to maintain separate accounts which might justify proportionate disallowance. 29. In the above context, the following saying of Adam Smith in his seminal work – The Wealth of Nations may aptly be quoted: The tax which each individual is bound to pay ought to be certain and not arbitrary. The time of payment, the manner of payment, the quantity to be paid ought all to be clear and plain to the contributor and to every other person. Echoing what was said by the 18th century economist, it needs to be observed here that in taxation regime, there is no room for presumption and nothing can be taken to be implied. The tax an individual or a corporate is required to pay, is a matter of planning for a tax payer and the Government should endeavour to keep it convenient and simple to achieve maximization of compliance. Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan. If proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue.
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1[ds]16. As can be seen, the contention on behalf of the assessee was rejected by the CIT(A) as also by the High Court primarily on the ground that the assessee had not kept their interest free funds in separate account and as such had purchased the bonds/shares from mixed account. This is how a proportionate amount of the interest paid on the borrowings/deposits, was considered to have been incurred to earn the tax-free income on bonds/shares and such proportionate amount was disallowed applying Section 14A of the Act.17. In a situation where the assessee has mixed fund (made up partly of interest free funds and partly of interest- bearing funds) and payment is made out of that mixed fund, the investment must be considered to have been made out of the interest free fund. To put it another way, in respect of payment made out of mixed fund, it is the assessee who has such right of appropriation and also the right to assert from what part of the fund a particular investment is made and it may not be permissible for the Revenue to make an estimation of a proportionate figure. For accepting such a proposition, it would be helpful to refer to the decision of the Bombay High Court in Pr. CIT v. Bombay Dyeing and Mfg. Co. Ltd I.T.A. No.1225 of 2015 where the answer was in favour of the assessee on the question, whether the Tribunal was justified in deleting the disallowance under Section 80M of the Act on the presumption that when the funds available to the assessee were both interest free and loans, the investments made would be out of the interest free funds available with the assessee, provided the interest free funds were sufficient to meet the investments. The resultant SLP of the Revenue challenging the Bombay High Court judgment was dismissed both on merit and on delay by this Court. The merit of the above proposition of law of the Bombay High Court would now be appreciated in the following discussion.19. In HDFC Bank Ltd. Vs. Deputy Commissioner of Income Tax (2016) 383 ITR 529 (Bom) / 2016 SCC Online Bom 1109, the assessee was a Scheduled Bank and the issue therein also pertained to disallowance under Section 14A. In this case, the Bombay High Court even while remanding the case back to Tribunal for adjudicating afresh observed (relying on its own previous judgment in same assessees case for a different Assessment Year) that, if assessee possesses sufficient interest free funds as against investment in tax free securities then, there is a presumption that investment which has been made in tax free securities, has come out of interest free funds available with assessee. In such situation Section 14A of the Act would not be applicable. Similar views have been expressed by other High Courts in CIT Vs. Suzlon Energy Ltd. (2013) 354 ITR 630 (Guj) / 2013 SCC Online Guj 8613, CIT Vs. Microlabs Ltd. (2016) 383 ITR 490 (Karn)/ 2016 SCC Online Kar 8490 and CIT Vs. Max India Ltd. (2016) 388 ITR 81 (P & H) / 2016 SCC Online P&H 6788 Mr. S Ganesh the learned Senior Counsel while citing these cases from the High Courts have further pointed out that those judgments have attained finality. On reading of these judgments, we are of the considered opinion that the High Courts have correctly interpreted the scope of Section 14A of the Act in their decisions favouring the assessees.20. Applying the same logic, the disallowance would be legally impermissible for the investment made by the assessees in bonds/shares using interest free funds, under Section 14A of the Act. In other words, if investments in securities is made out of common funds and the assessee has available, non-interest-bearing funds larger than the investments made in tax- free securities then in such cases, disallowance under Section 14A cannot be made.On this aspect, since the issue is pending before a larger Bench, comments from this Bench may not be appropriate. However, at the same time it is necessary to distinguish the facts of present appeals from those in SA Builders/Tulip Star Hotels Ltd. In that case, loans were extended to sister concern while here the Assessee- Banks have invested in bonds/securities. The factual scenario is different and distinguishable and therefore the issue pending before the larger Bench should have no bearing at this stage for the present matters.22. The High Court herein endorsed the proportionate disallowance made by the Assessing Officer under Section 14A of the Income Tax Act to the extent of investments made in tax-free bonds/securities primarily because, separate account was not maintained by assessee. On this aspect we wanted to know about the law which obligates the assessee to maintain separate accounts. However, the learned ASG could not provide a satisfactory answer and instead relied upon Honda Siel Power Products Ltd. v. DCIT [(2012) 12 SCC 762] to argue that it is the responsibility of the assessee to fully disclose all material facts. The cited judgment, as can be seen, mainly dealt with re-opening of assessment in view of escapement of income. The contention of department for re-opening was that the assessee had earned tax-free dividend and had claimed various administrative expenses for earning such dividend income and those (though not allowable) was allowed as expenditure and therefore the income had escaped assessment. On this, suffice would be to observe that the action in Honda Siel (supra) related to re-opening of assessment where full disclosure was not made. An assessee definitely has the obligation to provide full material disclosures at the time of filing of Income Tax Return but there is no corresponding legal obligation upon the assessee to maintain separate accounts for different types of funds held by it. In absence of any statutory provision which compels the assessee to maintain separate accounts for different types of funds, the judgment cited by the learned ASG will have no application to support the Revenues contention against the assessee.23. It would now be appropriate to advert in some detail to Maxopp Investment Ltd. v. CIT (2018) 15 SCC 523. This case interestingly is relied by both sides counsel. Writing for the Bench, Justice Dr. A.K. Sikri noted the objective for incorporation of Section 14A in the Act in the following words: -3…………. The purpose behind Section 14-A of the Act, by not permitting deduction of the expenditure incurred in relation to income, which does not form part of total income, is to ensure that the assessee does not get double benefit. Once a particular income itself is not to be included in the total income and is exempted from tax, there is no reasonable basis for giving benefit of deduction of the expenditure incurred in earning such an income…The following was written explaining the scope of Section 14-A(1):41. In the first instance, it needs to be recognised that as per Section 14-A(1) of the Act, deduction of that expenditure is not to be allowed which has been incurred by the assessee in relation to income which does not form part of the total income under this Act. Axiomatically, it is that expenditure alone which has been incurred in relation to the income which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of the total income.Adverting to the law as it stood earlier, this Court rejected the theory of dominant purpose suggested by the Punjab & Haryana High Court and accepted the principle of apportionment of expenditure only when the business was divisible, as was propounded by the Delhi High Court.Finally adjudicating the issue of expenditure on shares held as stock-in-trade, the following key observations were made by Justice Sikri:50. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. [Maxopp Investment Ltd. v. CIT, 2011 SCC OnLine Del 4855 : (2012) 347 ITR 272 ] where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock- in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits…The learned Judge then considered the implication of Rule 8D of the Rules in the context of Section 14-A(2) of the Act and clarified that before applying the theory of apportionment, the Assessing Officer must record satisfaction on Suo Moto disallowance only in those cases where, the apportionment was done by the assessee. The following is relevant for the purpose of this judgment:51. ……………….It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect.24. Another important judgment dealing with Section 14A disallowance which merits consideration is Godrej and Boyce Manufacturing Company Ltd. V. DCIT [(2017) 7 SCC 421 .. Here the assessee had access to adequate interest free funds to make investments and the issue pertained to disallowance of expenditure incurred to earn dividend income, which was not forming part of total income of the Assessee. Justice Ranjan Gogoi writing the opinion on behalf of the Division Bench observed that for disallowance of expenditure incurred in earning an income, it is a condition precedent that such income should not be includible in total income of assessee. This Court accordingly concluded that for attracting provisions of Section 14A, the proof of fact regarding such expenditure being incurred for earning exempt income is necessary. The relevant portion of Justice Gogois judgment reads as follow:36. ……… what cannot be denied is that the requirement for attracting the provisions of Section 14-A (1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income…26. Reverting back to the situation here, the Revenue does not contend that the Assessee Banks had held the securities for maintaining the Statutory Liquidity Ratio (SLR), as mentioned in the circular. In view of this position, when there is no finding that the investments of the Assessee are of the related category, tax implication would not arise against the appellants, from the said circular.27. The aforesaid discussion and the cited judgments advise this Court to conclude that the proportionate disallowance of interest is not warranted, under Section 14A of Income Tax Act for investments made in tax free bonds/ securities which yield tax free dividend and interest to Assessee Banks in those situations where, interest free own funds available with the Assessee, exceeded their investments. With this conclusion, we unhesitatingly agree with the view taken by the learned ITAT favouring the assessees.28. The above conclusion is reached because nexus has not been established between expenditure disallowed and earning of exempt income. The respondents as earlier noted, have failed to substantiate their argument that assessee was required to maintain separate accounts. Their reliance on Honda Siel (Supra) to project such an obligation on the assessee, is already negated. The learned counsel for the revenue has failed to refer to any statutory provision which obligate the assessee to maintain separate accounts which might justify proportionate disallowance.Echoing what was said by the 18th century economist, it needs to be observed here that in taxation regime, there is no room for presumption and nothing can be taken to be implied. The tax an individual or a corporate is required to pay, is a matter of planning for a tax payer and the Government should endeavour to keep it convenient and simple to achieve maximization of compliance. Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan. If proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue.
| 1 | 4,515 | 2,398 |
### 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:
retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock- in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits… The learned Judge then considered the implication of Rule 8D of the Rules in the context of Section 14-A(2) of the Act and clarified that before applying the theory of apportionment, the Assessing Officer must record satisfaction on Suo Moto disallowance only in those cases where, the apportionment was done by the assessee. The following is relevant for the purpose of this judgment: 51. ……………….It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. 24. Another important judgment dealing with Section 14A disallowance which merits consideration is Godrej and Boyce Manufacturing Company Ltd. V. DCIT [(2017) 7 SCC 421 .. Here the assessee had access to adequate interest free funds to make investments and the issue pertained to disallowance of expenditure incurred to earn dividend income, which was not forming part of total income of the Assessee. Justice Ranjan Gogoi writing the opinion on behalf of the Division Bench observed that for disallowance of expenditure incurred in earning an income, it is a condition precedent that such income should not be includible in total income of assessee. This Court accordingly concluded that for attracting provisions of Section 14A, the proof of fact regarding such expenditure being incurred for earning exempt income is necessary. The relevant portion of Justice Gogois judgment reads as follow: 36. ……… what cannot be denied is that the requirement for attracting the provisions of Section 14-A (1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income… 25. Proceeding now to another aspect, it is seen that the Central Board of Direct Taxes (CBDT) had issued the Circular no. 18 of 2015 dated 02.11.2015, which had analyzed and then explained that all shares and securities held by a bank which are not bought to maintain Statutory Liquidity Ratio (SLR) are its stock-in-trade and not investments and income arising out of those is attributable, to business of banking. This Circular came to be issued in the aftermath of CIT Vs. Nawanshahar Central Cooperative Bank Ltd. [(2007) 15 SCC 611] / [(2007) 160 TAXMAN 48 (SC)] wherein this Court had held that investments made by a banking concern is part of their banking business. Hence the income earned through such investments would fall under the head Profits & Gains of business. The Punjab and Haryana High Court, in the case of Pr. CIT, vs. State Bank of Patiala 2017 (393) ITR 476 (P&H) while adverting to the CBDT Circular, concluded correctly that shares and securities held by a bank are stock in trade, and all income received on such shares and securities must be considered to be business income. That is why Section 14A would not be attracted to such income. 26. Reverting back to the situation here, the Revenue does not contend that the Assessee Banks had held the securities for maintaining the Statutory Liquidity Ratio (SLR), as mentioned in the circular. In view of this position, when there is no finding that the investments of the Assessee are of the related category, tax implication would not arise against the appellants, from the said circular. 27. The aforesaid discussion and the cited judgments advise this Court to conclude that the proportionate disallowance of interest is not warranted, under Section 14A of Income Tax Act for investments made in tax free bonds/ securities which yield tax free dividend and interest to Assessee Banks in those situations where, interest free own funds available with the Assessee, exceeded their investments. With this conclusion, we unhesitatingly agree with the view taken by the learned ITAT favouring the assessees. 28. The above conclusion is reached because nexus has not been established between expenditure disallowed and earning of exempt income. The respondents as earlier noted, have failed to substantiate their argument that assessee was required to maintain separate accounts. Their reliance on Honda Siel (Supra) to project such an obligation on the assessee, is already negated. The learned counsel for the revenue has failed to refer to any statutory provision which obligate the assessee to maintain separate accounts which might justify proportionate disallowance. 29. In the above context, the following saying of Adam Smith in his seminal work – The Wealth of Nations may aptly be quoted: The tax which each individual is bound to pay ought to be certain and not arbitrary. The time of payment, the manner of payment, the quantity to be paid ought all to be clear and plain to the contributor and to every other person. Echoing what was said by the 18th century economist, it needs to be observed here that in taxation regime, there is no room for presumption and nothing can be taken to be implied. The tax an individual or a corporate is required to pay, is a matter of planning for a tax payer and the Government should endeavour to keep it convenient and simple to achieve maximization of compliance. Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan. If proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue.
### Response:
1
### Explanation:
is that expenditure alone which has been incurred in relation to the income which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of the total income.Adverting to the law as it stood earlier, this Court rejected the theory of dominant purpose suggested by the Punjab & Haryana High Court and accepted the principle of apportionment of expenditure only when the business was divisible, as was propounded by the Delhi High Court.Finally adjudicating the issue of expenditure on shares held as stock-in-trade, the following key observations were made by Justice Sikri:50. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. [Maxopp Investment Ltd. v. CIT, 2011 SCC OnLine Del 4855 : (2012) 347 ITR 272 ] where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock- in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits…The learned Judge then considered the implication of Rule 8D of the Rules in the context of Section 14-A(2) of the Act and clarified that before applying the theory of apportionment, the Assessing Officer must record satisfaction on Suo Moto disallowance only in those cases where, the apportionment was done by the assessee. The following is relevant for the purpose of this judgment:51. ……………….It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect.24. Another important judgment dealing with Section 14A disallowance which merits consideration is Godrej and Boyce Manufacturing Company Ltd. V. DCIT [(2017) 7 SCC 421 .. Here the assessee had access to adequate interest free funds to make investments and the issue pertained to disallowance of expenditure incurred to earn dividend income, which was not forming part of total income of the Assessee. Justice Ranjan Gogoi writing the opinion on behalf of the Division Bench observed that for disallowance of expenditure incurred in earning an income, it is a condition precedent that such income should not be includible in total income of assessee. This Court accordingly concluded that for attracting provisions of Section 14A, the proof of fact regarding such expenditure being incurred for earning exempt income is necessary. The relevant portion of Justice Gogois judgment reads as follow:36. ……… what cannot be denied is that the requirement for attracting the provisions of Section 14-A (1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income…26. Reverting back to the situation here, the Revenue does not contend that the Assessee Banks had held the securities for maintaining the Statutory Liquidity Ratio (SLR), as mentioned in the circular. In view of this position, when there is no finding that the investments of the Assessee are of the related category, tax implication would not arise against the appellants, from the said circular.27. The aforesaid discussion and the cited judgments advise this Court to conclude that the proportionate disallowance of interest is not warranted, under Section 14A of Income Tax Act for investments made in tax free bonds/ securities which yield tax free dividend and interest to Assessee Banks in those situations where, interest free own funds available with the Assessee, exceeded their investments. With this conclusion, we unhesitatingly agree with the view taken by the learned ITAT favouring the assessees.28. The above conclusion is reached because nexus has not been established between expenditure disallowed and earning of exempt income. The respondents as earlier noted, have failed to substantiate their argument that assessee was required to maintain separate accounts. Their reliance on Honda Siel (Supra) to project such an obligation on the assessee, is already negated. The learned counsel for the revenue has failed to refer to any statutory provision which obligate the assessee to maintain separate accounts which might justify proportionate disallowance.Echoing what was said by the 18th century economist, it needs to be observed here that in taxation regime, there is no room for presumption and nothing can be taken to be implied. The tax an individual or a corporate is required to pay, is a matter of planning for a tax payer and the Government should endeavour to keep it convenient and simple to achieve maximization of compliance. Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan. If proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue.
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National Insurance Co. Ltd Vs. Yellamma
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not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation.- Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be. 7. The question came up for consideration recently before this Court in Deddaooa & Ors. v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595] , wherein upon noticing the precedents which were operating in the field, it was clearly held: 18. The ratio of the said decision was, however, noticed by this Court in New India Assurance Co. Ltd. v. Rula and Ors. [(2003) 3 SCC 195]. It was held that ordinarily a liability under the contract of insurance would arise only on payment of premium, if such payment was made a condition precedent for taking effect of the insurance policy but such a condition which is intended for the benefit of the insurer can be waived by it. It was opined: 13...If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of the insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party. The dicta laid down therein clarifies that if on the date of accident the policy subsists, then only the third party would be entitled to avail the benefit thereof. 19. Almost an identical question again came up for consideration before this Court in National Insurance Co. Ltd. v. Seema Malhotra and Ors. [(2001) 3 SCC 151] , a Division Bench noticed both the aforementioned decisions and analysed the same in the light of Section 64-VB of the 1938 Act. It was held: 17. In a contract of insurance when the insured gives a cheque towards payment of premium or part of the premium, such a contract consists of reciprocal promise. The drawer of the cheque promises the insurer that the cheque, on presentation, would yield the amount in cash. It cannot be forgotten that a cheque is a bill of exchange drawn on a specified banker. A bill of exchange is an instrument in writing containing an unconditional order directing a certain person to pay a certain sum of money to a certain person. It involves a promise that such money would be paid. 18. Thus, when the insured fails to pay the premium promised, or when the cheque issued by him towards the premium is returned dishonoured by the bank concerned the insurer need not perform his part of the promise. The corollary is that the insured cannot claim performance from the insurer in such a situation. 19. Under Section 25 of the Contract Act an agreement made without consideration is void. Section 65 of the Contract Act says that when a contract becomes void any person who has received any advantage under such contract is bound to restore it to the person from whom he received it. So, even if the insurer has disbursed the amount covered by the policy to the insured before the cheque was returned dishonoured, the insurer is entitled to get the money back.20. However, if the insured makes up the premium even after the cheque was dishonoured but before the date of accident it would be a different case as payment of consideration can be treated as paid in the order in which the nature of transaction required it. As such an event did not happen in this case, the Insurance Company is legally justified in refusing to pay the amount claimed by the respondents. 20. A contract is based on reciprocal promise. Reciprocal promises by the parties are condition precedents for a valid contract. A contract furthermore must be for consideration. 8. In todays world payment by cheque is ordinarily accepted as valid tender but the same would be subject to its encashment. A distinction, however, exists between the statutory liability of the insurance company vis-à-vis the third party in terms of Sections 147 and 149 of the Motor Vehicles Act and its liability in other cases but it is clear that if the contract of insurance had been cancelled and all concerned had been intimated thereabout, the insurance company would not be liable to satisfy the claim. 9. In this case, there cannot be any doubt or dispute whatsoever that no privity of contract came into being between the appellant and the second respondent and as such the question of enforcing the purported contract of insurance while taking recourse to Section 147 of the Motor Vehicles Act did not arise. Second respondent did not contest the case at any stage. It did not adduce any evidence before the Tribunal. It does not appeal from the judgments of the High Court. No argument in the appeal was advanced in his behalf. Before us also, no appearance has been made on behalf of the respondent No.2 despite service of notice. 10. The accident took place in the State of Karnataka. Respondent No.2 is a resident of Ludhiana. The transaction in question was purported to have been entered in Ludhiana. First respondent, therefore, in our opinion, may not be in a position to enforce the award as against the respondent No.2. 11. In the peculiar facts and circumstances of this case, we are, therefore, of the opinion that the interest of justice would be sub served if we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that the awarded amount be paid by the appellant to the first respondent with liberty to it to recover the same from the second respondent by initiating an appropriate proceeding in this behalf.
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1[ds]9. In this case, there cannot be any doubt or dispute whatsoever that no privity of contract came into being between the appellant and the second respondent and as such the question of enforcing the purported contract of insurance while taking recourse to Section 147 of the Motor Vehicles Act did not arise. Second respondent did not contest the case at any stage. It did not adduce any evidence before the Tribunal. It does not appeal from the judgments of the High Court. No argument in the appeal was advanced in his behalf. Before us also, no appearance has been made on behalf of the respondent No.2 despite service of notice10. The accident took place in the State of Karnataka. Respondent No.2 is a resident of Ludhiana. The transaction in question was purported to have been entered in Ludhiana. First respondent, therefore, in our opinion, may not be in a position to enforce the award as against the respondent No.211. In the peculiar facts and circumstances of this case, we are, therefore, of the opinion that the interest of justice would be sub served if we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that the awarded amount be paid by the appellant to the first respondent with liberty to it to recover the same from the second respondent by initiating an appropriate proceeding in this behalf6. The High Court, however, wrongly proceeded on the premise that a cheque could be issued by a third party. A contract of insurance like any other contract, is a contract between the insured and the insurer. The amount of premium is required to be paid as a consideration for arriving at a concluded contract. If the insurer insists that a cheque should be issued only by the insured and not by a third party, no exception thereto can be taken. The fact remains that the cheque was not encashed. Concededly, the insured did not make any payment. Section 64VB of the Insurance Act mandates that before a contract of insurance comes into being, the premium should be received by the insurer in advance, stating:No risk to be assumed unless premium is received in advance(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurerWhere the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be7. The question came up for consideration recently before this Court in Deddaooa & Ors. v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595] , wherein upon noticing the precedents which were operating in the field, it was clearly held:18. The ratio of the said decision was, however, noticed by this Court in New India Assurance Co. Ltd. v. Rula and Ors. [(2003) 3 SCC 195]. It was held that ordinarily a liability under the contract of insurance would arise only on payment of premium, if such payment was made a condition precedent for taking effect of the insurance policy but such a condition which is intended for the benefit of the insurer can be waived by it. It was opined:13...If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of the insurance policy on the ground oft of premium would not affect the rights already accrued in favour of the third party.The dicta laid down therein clarifies that if on the date of accident the policy subsists, then only the third party would be entitled to avail the benefit thereof.
| 1 | 2,295 | 825 |
### 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:
not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation.- Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be. 7. The question came up for consideration recently before this Court in Deddaooa & Ors. v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595] , wherein upon noticing the precedents which were operating in the field, it was clearly held: 18. The ratio of the said decision was, however, noticed by this Court in New India Assurance Co. Ltd. v. Rula and Ors. [(2003) 3 SCC 195]. It was held that ordinarily a liability under the contract of insurance would arise only on payment of premium, if such payment was made a condition precedent for taking effect of the insurance policy but such a condition which is intended for the benefit of the insurer can be waived by it. It was opined: 13...If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of the insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party. The dicta laid down therein clarifies that if on the date of accident the policy subsists, then only the third party would be entitled to avail the benefit thereof. 19. Almost an identical question again came up for consideration before this Court in National Insurance Co. Ltd. v. Seema Malhotra and Ors. [(2001) 3 SCC 151] , a Division Bench noticed both the aforementioned decisions and analysed the same in the light of Section 64-VB of the 1938 Act. It was held: 17. In a contract of insurance when the insured gives a cheque towards payment of premium or part of the premium, such a contract consists of reciprocal promise. The drawer of the cheque promises the insurer that the cheque, on presentation, would yield the amount in cash. It cannot be forgotten that a cheque is a bill of exchange drawn on a specified banker. A bill of exchange is an instrument in writing containing an unconditional order directing a certain person to pay a certain sum of money to a certain person. It involves a promise that such money would be paid. 18. Thus, when the insured fails to pay the premium promised, or when the cheque issued by him towards the premium is returned dishonoured by the bank concerned the insurer need not perform his part of the promise. The corollary is that the insured cannot claim performance from the insurer in such a situation. 19. Under Section 25 of the Contract Act an agreement made without consideration is void. Section 65 of the Contract Act says that when a contract becomes void any person who has received any advantage under such contract is bound to restore it to the person from whom he received it. So, even if the insurer has disbursed the amount covered by the policy to the insured before the cheque was returned dishonoured, the insurer is entitled to get the money back.20. However, if the insured makes up the premium even after the cheque was dishonoured but before the date of accident it would be a different case as payment of consideration can be treated as paid in the order in which the nature of transaction required it. As such an event did not happen in this case, the Insurance Company is legally justified in refusing to pay the amount claimed by the respondents. 20. A contract is based on reciprocal promise. Reciprocal promises by the parties are condition precedents for a valid contract. A contract furthermore must be for consideration. 8. In todays world payment by cheque is ordinarily accepted as valid tender but the same would be subject to its encashment. A distinction, however, exists between the statutory liability of the insurance company vis-à-vis the third party in terms of Sections 147 and 149 of the Motor Vehicles Act and its liability in other cases but it is clear that if the contract of insurance had been cancelled and all concerned had been intimated thereabout, the insurance company would not be liable to satisfy the claim. 9. In this case, there cannot be any doubt or dispute whatsoever that no privity of contract came into being between the appellant and the second respondent and as such the question of enforcing the purported contract of insurance while taking recourse to Section 147 of the Motor Vehicles Act did not arise. Second respondent did not contest the case at any stage. It did not adduce any evidence before the Tribunal. It does not appeal from the judgments of the High Court. No argument in the appeal was advanced in his behalf. Before us also, no appearance has been made on behalf of the respondent No.2 despite service of notice. 10. The accident took place in the State of Karnataka. Respondent No.2 is a resident of Ludhiana. The transaction in question was purported to have been entered in Ludhiana. First respondent, therefore, in our opinion, may not be in a position to enforce the award as against the respondent No.2. 11. In the peculiar facts and circumstances of this case, we are, therefore, of the opinion that the interest of justice would be sub served if we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that the awarded amount be paid by the appellant to the first respondent with liberty to it to recover the same from the second respondent by initiating an appropriate proceeding in this behalf.
### Response:
1
### Explanation:
9. In this case, there cannot be any doubt or dispute whatsoever that no privity of contract came into being between the appellant and the second respondent and as such the question of enforcing the purported contract of insurance while taking recourse to Section 147 of the Motor Vehicles Act did not arise. Second respondent did not contest the case at any stage. It did not adduce any evidence before the Tribunal. It does not appeal from the judgments of the High Court. No argument in the appeal was advanced in his behalf. Before us also, no appearance has been made on behalf of the respondent No.2 despite service of notice10. The accident took place in the State of Karnataka. Respondent No.2 is a resident of Ludhiana. The transaction in question was purported to have been entered in Ludhiana. First respondent, therefore, in our opinion, may not be in a position to enforce the award as against the respondent No.211. In the peculiar facts and circumstances of this case, we are, therefore, of the opinion that the interest of justice would be sub served if we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that the awarded amount be paid by the appellant to the first respondent with liberty to it to recover the same from the second respondent by initiating an appropriate proceeding in this behalf6. The High Court, however, wrongly proceeded on the premise that a cheque could be issued by a third party. A contract of insurance like any other contract, is a contract between the insured and the insurer. The amount of premium is required to be paid as a consideration for arriving at a concluded contract. If the insurer insists that a cheque should be issued only by the insured and not by a third party, no exception thereto can be taken. The fact remains that the cheque was not encashed. Concededly, the insured did not make any payment. Section 64VB of the Insurance Act mandates that before a contract of insurance comes into being, the premium should be received by the insurer in advance, stating:No risk to be assumed unless premium is received in advance(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurerWhere the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be7. The question came up for consideration recently before this Court in Deddaooa & Ors. v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595] , wherein upon noticing the precedents which were operating in the field, it was clearly held:18. The ratio of the said decision was, however, noticed by this Court in New India Assurance Co. Ltd. v. Rula and Ors. [(2003) 3 SCC 195]. It was held that ordinarily a liability under the contract of insurance would arise only on payment of premium, if such payment was made a condition precedent for taking effect of the insurance policy but such a condition which is intended for the benefit of the insurer can be waived by it. It was opined:13...If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of the insurance policy on the ground oft of premium would not affect the rights already accrued in favour of the third party.The dicta laid down therein clarifies that if on the date of accident the policy subsists, then only the third party would be entitled to avail the benefit thereof.
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B.N. Elias & Company Limited, Employees' Union & Others Vs. B.N. Elias & Company Limited & Others
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of goodwill in circumstances in which no tribunal would award a bonus. The respondents therefore resisted the claim for any further payment as bonus for these three years.4. Before the tribunal, the appellants abandoned their claim for bonus on the basis of the Full Bench formula. They however pressed their claim on the ground that bonus was payable as an implied condition of service and had also acquired the status of customary bonus. The tribunal, however, negatived the contention that the payment of bonus as claimed had become an implied condition of service. It also held that the case of the employees based on custom was not tenable. In consequence it refused to grant any further bonus for the years 1954 and 1955 beyond what the appellants had been already paid and rejected the claim for 1956 altogether.5. Shri N. C. Chatterjee for the appellants has mainly pressed the claim for bonus on the ground that it is a customary bonus and relies on Grahams Trading Co. (India) Ltd. v. Their Workmen, AIR 1959 SC 1151 . Before we deal with this aspect of the matter we may shortly dispose of the claim based on an implied agreement, or condition of service.The evidence shows that though payment was made uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff, it was made clear every time the payment was made that it was an ex gratia payment. Further the receipts given by the employees, a sample of which was produced show that the bonus was accepted as ex gratia bonus. As is pointed in Messrs Grahams Trading Co., AIR 1959 SC 1151 (supra), it would not be possible to imply a term of service on the basis of an implied agreement when the payment was clearly made ex gratia and had even been accepted as such, as in this case.Therefore, the contention of the appellants that the bonus claimed by them has become an implied term of agreement or a condition of service must fail.6. Our attention in this connection was drawn to a letter of appointment issued to one C. V. Thomas in which under the head "other allowance", the following appears -"Equivalent to a months salary every 4th month will be allowed after your confirmation in employment."That is, however, an express term in the contract between the National Tobacco Company of India Limited (which is one of the respondents before us) and Thomas and cannot be a basis for a finding of an implied term of agreement to give bonus three times a year.Thomas may have a claim on the basis of this term of agreement between him and the company, about which we say nothing. Another letter of appointment also of National Tobacco Company of India Limited with respect to one Ram Shankar Misra was referred to.In that letter, however, among the terms we find a term relating to bonus at the rate of Rs. 15 per month after conformation. That is again an express term between that employee and the National Tobacco Company of India Limited and cannot support the case of an implied term of agreement by which a months bonus is paid thrice a year in April, August and December. The tribunal was therefore right in rejecting the contention based on the implied term of agreement or condition of service.7. Turning now to the case of customary bonus which has been pressed before us on the authority of Messrs. Grahams Trading Company, AIR 1959 SC 1151 (Supra), we may point out that that was a case of a customary and traditional bonus payable at Puja which was a special festival of particular importance in Bengal. That case cannot be held to have laid down that there can be customary bonus as such unconnected with some festival.It is difficult to introduce a customary payment of bonus between employer and employee where terms of service are governed by contract, express or implied, except where the bonus may be connected with a festival whether Puja in Bengal or some other equally important festival in any other part of the country. The principles laid down in that case for governing customary and traditional bonus connected with a festival cannot in our opinion be extended to what may be called a customary bonus unconnected with any festival.We are therefore of opinion that the appellants having failed to prove (except in one matter with which we shall deal presently) the there was an implied agreement or condition of service for payment of bonus, they cannot ask for payment of any bonus on the basis of any customary payment unconnected with any festival.8. This brings us to one of the payments to subordinate staff which was "one months basic wages as bonus at Puja time". It will be noticed that this payment to the subordinate staff at Puja time is in addition to the other payments which are common between the clerical and the subordinate staff.This payment of one months basic wage as bonus at Puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss, vide Ex. E.We are therefore of opinion that the principles laid down in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), apply to one months Puja bonus payable to the subordinate staff and it should be held that this payment has become customary and traditional in the respondents concerns when the dispute was raised for the first time in 1954. We have no doubt that if the judgment in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), was available to the tribunal it would have held that one months basic wage as bonus at Puja time to subordinate staff and become customary and traditional in the respondents concerns.
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1[ds]The evidence shows that though payment was made uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff, it was made clear every time the payment was made that it was an ex gratia payment. Further the receipts given by the employees, a sample of which was produced show that the bonus was accepted as ex gratia bonus. As is pointed in Messrs Grahams Trading Co., AIR 1959 SC 1151 (supra), it would not be possible to imply a term of service on the basis of an implied agreement when the payment was clearly made ex gratia and had even been accepted as such, as in this case.Therefore, the contention of the appellants that the bonus claimed by them has become an implied term of agreement or a condition of service mustis, however, an express term in the contract between the National Tobacco Company of India Limited (which is one of the respondents before us) and Thomas and cannot be a basis for a finding of an implied term of agreement to give bonus three times a year.Thomas may have a claim on the basis of this term of agreement between him and the company, about which we say nothing. Another letter of appointment also of National Tobacco Company of India Limited with respect to one Ram Shankar Misra was referred to.In that letter, however, among the terms we find a term relating to bonus at the rate of Rs. 15 per month after conformation. That is again an express term between that employee and the National Tobacco Company of India Limited and cannot support the case of an implied term of agreement by which a months bonus is paid thrice a year in April, August and December. The tribunal was therefore right in rejecting the contention based on the implied term of agreement or condition ofare therefore of opinion that the appellants having failed to prove (except in one matter with which we shall deal presently) the there was an implied agreement or condition of service for payment of bonus, they cannot ask for payment of any bonus on the basis of any customary payment unconnected with anypayment of one months basic wage as bonus at Puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss, vide Ex. E.We are therefore of opinion that the principles laid down in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), apply to one months Puja bonus payable to the subordinate staff and it should be held that this payment has become customary and traditional in the respondents concerns when the dispute was raised for the first time in 1954. We have no doubt that if the judgment in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), was available to the tribunal it would have held that one months basic wage as bonus at Puja time to subordinate staff and become customary and traditional in the respondents concerns.
| 1 | 1,676 | 579 |
### 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:
of goodwill in circumstances in which no tribunal would award a bonus. The respondents therefore resisted the claim for any further payment as bonus for these three years.4. Before the tribunal, the appellants abandoned their claim for bonus on the basis of the Full Bench formula. They however pressed their claim on the ground that bonus was payable as an implied condition of service and had also acquired the status of customary bonus. The tribunal, however, negatived the contention that the payment of bonus as claimed had become an implied condition of service. It also held that the case of the employees based on custom was not tenable. In consequence it refused to grant any further bonus for the years 1954 and 1955 beyond what the appellants had been already paid and rejected the claim for 1956 altogether.5. Shri N. C. Chatterjee for the appellants has mainly pressed the claim for bonus on the ground that it is a customary bonus and relies on Grahams Trading Co. (India) Ltd. v. Their Workmen, AIR 1959 SC 1151 . Before we deal with this aspect of the matter we may shortly dispose of the claim based on an implied agreement, or condition of service.The evidence shows that though payment was made uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff, it was made clear every time the payment was made that it was an ex gratia payment. Further the receipts given by the employees, a sample of which was produced show that the bonus was accepted as ex gratia bonus. As is pointed in Messrs Grahams Trading Co., AIR 1959 SC 1151 (supra), it would not be possible to imply a term of service on the basis of an implied agreement when the payment was clearly made ex gratia and had even been accepted as such, as in this case.Therefore, the contention of the appellants that the bonus claimed by them has become an implied term of agreement or a condition of service must fail.6. Our attention in this connection was drawn to a letter of appointment issued to one C. V. Thomas in which under the head "other allowance", the following appears -"Equivalent to a months salary every 4th month will be allowed after your confirmation in employment."That is, however, an express term in the contract between the National Tobacco Company of India Limited (which is one of the respondents before us) and Thomas and cannot be a basis for a finding of an implied term of agreement to give bonus three times a year.Thomas may have a claim on the basis of this term of agreement between him and the company, about which we say nothing. Another letter of appointment also of National Tobacco Company of India Limited with respect to one Ram Shankar Misra was referred to.In that letter, however, among the terms we find a term relating to bonus at the rate of Rs. 15 per month after conformation. That is again an express term between that employee and the National Tobacco Company of India Limited and cannot support the case of an implied term of agreement by which a months bonus is paid thrice a year in April, August and December. The tribunal was therefore right in rejecting the contention based on the implied term of agreement or condition of service.7. Turning now to the case of customary bonus which has been pressed before us on the authority of Messrs. Grahams Trading Company, AIR 1959 SC 1151 (Supra), we may point out that that was a case of a customary and traditional bonus payable at Puja which was a special festival of particular importance in Bengal. That case cannot be held to have laid down that there can be customary bonus as such unconnected with some festival.It is difficult to introduce a customary payment of bonus between employer and employee where terms of service are governed by contract, express or implied, except where the bonus may be connected with a festival whether Puja in Bengal or some other equally important festival in any other part of the country. The principles laid down in that case for governing customary and traditional bonus connected with a festival cannot in our opinion be extended to what may be called a customary bonus unconnected with any festival.We are therefore of opinion that the appellants having failed to prove (except in one matter with which we shall deal presently) the there was an implied agreement or condition of service for payment of bonus, they cannot ask for payment of any bonus on the basis of any customary payment unconnected with any festival.8. This brings us to one of the payments to subordinate staff which was "one months basic wages as bonus at Puja time". It will be noticed that this payment to the subordinate staff at Puja time is in addition to the other payments which are common between the clerical and the subordinate staff.This payment of one months basic wage as bonus at Puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss, vide Ex. E.We are therefore of opinion that the principles laid down in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), apply to one months Puja bonus payable to the subordinate staff and it should be held that this payment has become customary and traditional in the respondents concerns when the dispute was raised for the first time in 1954. We have no doubt that if the judgment in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), was available to the tribunal it would have held that one months basic wage as bonus at Puja time to subordinate staff and become customary and traditional in the respondents concerns.
### Response:
1
### Explanation:
The evidence shows that though payment was made uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff, it was made clear every time the payment was made that it was an ex gratia payment. Further the receipts given by the employees, a sample of which was produced show that the bonus was accepted as ex gratia bonus. As is pointed in Messrs Grahams Trading Co., AIR 1959 SC 1151 (supra), it would not be possible to imply a term of service on the basis of an implied agreement when the payment was clearly made ex gratia and had even been accepted as such, as in this case.Therefore, the contention of the appellants that the bonus claimed by them has become an implied term of agreement or a condition of service mustis, however, an express term in the contract between the National Tobacco Company of India Limited (which is one of the respondents before us) and Thomas and cannot be a basis for a finding of an implied term of agreement to give bonus three times a year.Thomas may have a claim on the basis of this term of agreement between him and the company, about which we say nothing. Another letter of appointment also of National Tobacco Company of India Limited with respect to one Ram Shankar Misra was referred to.In that letter, however, among the terms we find a term relating to bonus at the rate of Rs. 15 per month after conformation. That is again an express term between that employee and the National Tobacco Company of India Limited and cannot support the case of an implied term of agreement by which a months bonus is paid thrice a year in April, August and December. The tribunal was therefore right in rejecting the contention based on the implied term of agreement or condition ofare therefore of opinion that the appellants having failed to prove (except in one matter with which we shall deal presently) the there was an implied agreement or condition of service for payment of bonus, they cannot ask for payment of any bonus on the basis of any customary payment unconnected with anypayment of one months basic wage as bonus at Puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss, vide Ex. E.We are therefore of opinion that the principles laid down in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), apply to one months Puja bonus payable to the subordinate staff and it should be held that this payment has become customary and traditional in the respondents concerns when the dispute was raised for the first time in 1954. We have no doubt that if the judgment in Messrs. Grahams Trading Company, AIR 1959 SC 1151 (supra), was available to the tribunal it would have held that one months basic wage as bonus at Puja time to subordinate staff and become customary and traditional in the respondents concerns.
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INDIA POWER CORPORATION LTD Vs. EASTERN COALFIELDS LIMITED
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Petition is to prevent the respondents from obtaining recovery of possession of the generating station without releasing the written down value of the added assets, as per computation of the petitioners. It is also noticed that in spite of orders passed by the Court on 12.10.2012 that …steps ought to be taken by the committee to not only physically verify the plant and machinery but also other assets of the plant by ascertaining the book value thereof…. no steps were taken. This exercise was to be completed by 12.12.2012. Since, the exercise was not completed by that time, the time was extended till 08.01.2013. At the time of final disposal of the Writ Petition the Learned Single Judge observed that the dispute does not seem to be resolvable by the committee set up by the respondent. It is noticed that the issues involved are also highly disputed factual issues. The matter was therefore referred to arbitration under the relevant clause of the lease deed. In appeal the Division Bench upheld the order of the Learned Single Judge on 19.03.2014. As noticed earlier the Supreme Court referred the matter to the Sole Arbitrator by order October 17, 2014, with the observation that the Sole Arbitrator is to arbitrate upon the disputes. From the above, it seems apparent that the reference to arbitration is not limited to disputes that existed prior to the passing of the order by the Supreme Court. Therefore, it cannot be accepted that the reference to arbitration would not cover the CounterClaims. 160. It must also be noticed here that the Claimant has raised a preliminary objection on the ground that the application for amendment suffers from delay and laches. Therefore, seeks its dismissal on this short ground. It is submitted that Claimant has already filed its objection to the MECON report and also filed a report submitted by M/s AKB Power Consultants Pvt. Ltd. For consideration of these two reports, further evidence will have to be recorded on behalf of both the parties. 161. It is matter of record that the application for amendment was filed at the time when the Respondent was to commence its arguments. In my opinion that the application cannot be allowed at this stage. The amendment must be necessary for the purpose of determining the real question in controversy. As noticed above, the issuance of the NIT clearly demonstrates the intention of the respondent was to replace the old machinery and plant to Stoker Fired Boilers by Fluidised bed Combustion Boilers. Therefore, the condition of the old machinery as well as the question of plant being in a running condition had become irrelevant. For the reasons stated above, the application for amendment is dismissed as it will serve no useful purpose in determining the real questions in controversy between the parties. 10. By means of the said amendment, the ECL had claimed that the power plant should be put into running condition before handing over its possession. The learned Arbitrator deals with the issue in detail and after considering the pleadings of the parties as also the order passed by the Calcutta High Court found that the counter claim sought to be raised by the said amendment regarding the plant being in a running condition was irrelevant in view of the dispute raised. 11. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counter-claim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports. The submission therefore, that there is requirement of the appointment of Arbitrator to carry out the exercise as per paragraph 160 of the award is therefore completely untenable. The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected. 12. A bare perusal of the award, in particular paragraph 162, which is the operative portion, does not in any manner indicate any kind of it being an interim award or that any aspect of the matter was to be further considered. In any case, the learned arbitrator did not record any further observation that for leading of further evidence any date has to be fixed or the parties were given opportunity to produce their evidence. It was a mere submission that consideration of MECON report would require further evidence but was not found to be necessary by implication. 13. The next submission relating to the applicability of Section 33 of the 1996 Act also has to fail for two reasons. Firstly, that the same is neither pleaded nor prayed in the application and secondly, once the Arbitrator, while awarding rent as counter claim had accepted the figures as quoted by the ECL, no issue of any error on the part of the Arbitrator in not correctly calculating the rent could be raised. The figure as claimed by the ECL is quoted in paragraph 73(1)(ii) of the award which has been accepted by the Arbitrator in the award. 14. There is another aspect of the matter which disentitles the applicant from any relief in this application. A perusal of the judgment of the Delhi High Court in Section 34 of the 1996 Act proceedings clearly reveals that the point which is being raised here was raised before the Delhi High Court. The Delhi High Court also did not agree with the submission of the respondent--applicant after considering paragraphs 157 to 161 and proceeded to hold that the observations made in paragraph 160 do not render the impugned order to be interim in nature, and that the award finally decided the dispute which was subject matter of the reference.
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0[ds]9. Paragraph 160 of the award cannot be read in isolation. It was a part of the award dealing with the Application for amendment of counter claim filed by respondent--ECL. The award carried the above sub-title before paragraph 157. Paragraph 160 contains mere submissions advanced on behalf of the appellant/claimant. MECON report was called with respect to the amendment of the counter claim regarding expenses required for putting the plant into running condition. After deliberating upon the said amendment, at the end of paragraph 161, the conclusion was that the application for amendment stood dismissed. Thus, the paragraphs 157 to 161 will have to be read as a whole to understand as to how the award proceeds to deal with the amendment to the counter claim.11. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counter-claim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports. The submission therefore, that there is requirement of the appointment of Arbitrator to carry out the exercise as per paragraph 160 of the award is therefore completely untenable. The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected.12. A bare perusal of the award, in particular paragraph 162, which is the operative portion, does not in any manner indicate any kind of it being an interim award or that any aspect of the matter was to be further considered. In any case, the learned arbitrator did not record any further observation that for leading of further evidence any date has to be fixed or the parties were given opportunity to produce their evidence. It was a mere submission that consideration of MECON report would require further evidence but was not found to be necessary by implication.13. The next submission relating to the applicability of Section 33 of the 1996 Act also has to fail for two reasons. Firstly, that the same is neither pleaded nor prayed in the application and secondly, once the Arbitrator, while awarding rent as counter claim had accepted the figures as quoted by the ECL, no issue of any error on the part of the Arbitrator in not correctly calculating the rent could be raised. The figure as claimed by the ECL is quoted in paragraph 73(1)(ii) of the award which has been accepted by the Arbitrator in the award.14. There is another aspect of the matter which disentitles the applicant from any relief in this application. A perusal of the judgment of the Delhi High Court in Section 34 of the 1996 Act proceedings clearly reveals that the point which is being raised here was raised before the Delhi High Court. The Delhi High Court also did not agree with the submission of the respondent--applicant after considering paragraphs 157 to 161 and proceeded to hold that the observations made in paragraph 160 do not render the impugned order to be interim in nature, and that the award finally decided the dispute which was subject matter of the reference.
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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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Petition is to prevent the respondents from obtaining recovery of possession of the generating station without releasing the written down value of the added assets, as per computation of the petitioners. It is also noticed that in spite of orders passed by the Court on 12.10.2012 that …steps ought to be taken by the committee to not only physically verify the plant and machinery but also other assets of the plant by ascertaining the book value thereof…. no steps were taken. This exercise was to be completed by 12.12.2012. Since, the exercise was not completed by that time, the time was extended till 08.01.2013. At the time of final disposal of the Writ Petition the Learned Single Judge observed that the dispute does not seem to be resolvable by the committee set up by the respondent. It is noticed that the issues involved are also highly disputed factual issues. The matter was therefore referred to arbitration under the relevant clause of the lease deed. In appeal the Division Bench upheld the order of the Learned Single Judge on 19.03.2014. As noticed earlier the Supreme Court referred the matter to the Sole Arbitrator by order October 17, 2014, with the observation that the Sole Arbitrator is to arbitrate upon the disputes. From the above, it seems apparent that the reference to arbitration is not limited to disputes that existed prior to the passing of the order by the Supreme Court. Therefore, it cannot be accepted that the reference to arbitration would not cover the CounterClaims. 160. It must also be noticed here that the Claimant has raised a preliminary objection on the ground that the application for amendment suffers from delay and laches. Therefore, seeks its dismissal on this short ground. It is submitted that Claimant has already filed its objection to the MECON report and also filed a report submitted by M/s AKB Power Consultants Pvt. Ltd. For consideration of these two reports, further evidence will have to be recorded on behalf of both the parties. 161. It is matter of record that the application for amendment was filed at the time when the Respondent was to commence its arguments. In my opinion that the application cannot be allowed at this stage. The amendment must be necessary for the purpose of determining the real question in controversy. As noticed above, the issuance of the NIT clearly demonstrates the intention of the respondent was to replace the old machinery and plant to Stoker Fired Boilers by Fluidised bed Combustion Boilers. Therefore, the condition of the old machinery as well as the question of plant being in a running condition had become irrelevant. For the reasons stated above, the application for amendment is dismissed as it will serve no useful purpose in determining the real questions in controversy between the parties. 10. By means of the said amendment, the ECL had claimed that the power plant should be put into running condition before handing over its possession. The learned Arbitrator deals with the issue in detail and after considering the pleadings of the parties as also the order passed by the Calcutta High Court found that the counter claim sought to be raised by the said amendment regarding the plant being in a running condition was irrelevant in view of the dispute raised. 11. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counter-claim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports. The submission therefore, that there is requirement of the appointment of Arbitrator to carry out the exercise as per paragraph 160 of the award is therefore completely untenable. The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected. 12. A bare perusal of the award, in particular paragraph 162, which is the operative portion, does not in any manner indicate any kind of it being an interim award or that any aspect of the matter was to be further considered. In any case, the learned arbitrator did not record any further observation that for leading of further evidence any date has to be fixed or the parties were given opportunity to produce their evidence. It was a mere submission that consideration of MECON report would require further evidence but was not found to be necessary by implication. 13. The next submission relating to the applicability of Section 33 of the 1996 Act also has to fail for two reasons. Firstly, that the same is neither pleaded nor prayed in the application and secondly, once the Arbitrator, while awarding rent as counter claim had accepted the figures as quoted by the ECL, no issue of any error on the part of the Arbitrator in not correctly calculating the rent could be raised. The figure as claimed by the ECL is quoted in paragraph 73(1)(ii) of the award which has been accepted by the Arbitrator in the award. 14. There is another aspect of the matter which disentitles the applicant from any relief in this application. A perusal of the judgment of the Delhi High Court in Section 34 of the 1996 Act proceedings clearly reveals that the point which is being raised here was raised before the Delhi High Court. The Delhi High Court also did not agree with the submission of the respondent--applicant after considering paragraphs 157 to 161 and proceeded to hold that the observations made in paragraph 160 do not render the impugned order to be interim in nature, and that the award finally decided the dispute which was subject matter of the reference.
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9. Paragraph 160 of the award cannot be read in isolation. It was a part of the award dealing with the Application for amendment of counter claim filed by respondent--ECL. The award carried the above sub-title before paragraph 157. Paragraph 160 contains mere submissions advanced on behalf of the appellant/claimant. MECON report was called with respect to the amendment of the counter claim regarding expenses required for putting the plant into running condition. After deliberating upon the said amendment, at the end of paragraph 161, the conclusion was that the application for amendment stood dismissed. Thus, the paragraphs 157 to 161 will have to be read as a whole to understand as to how the award proceeds to deal with the amendment to the counter claim.11. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counter-claim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports. The submission therefore, that there is requirement of the appointment of Arbitrator to carry out the exercise as per paragraph 160 of the award is therefore completely untenable. The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected.12. A bare perusal of the award, in particular paragraph 162, which is the operative portion, does not in any manner indicate any kind of it being an interim award or that any aspect of the matter was to be further considered. In any case, the learned arbitrator did not record any further observation that for leading of further evidence any date has to be fixed or the parties were given opportunity to produce their evidence. It was a mere submission that consideration of MECON report would require further evidence but was not found to be necessary by implication.13. The next submission relating to the applicability of Section 33 of the 1996 Act also has to fail for two reasons. Firstly, that the same is neither pleaded nor prayed in the application and secondly, once the Arbitrator, while awarding rent as counter claim had accepted the figures as quoted by the ECL, no issue of any error on the part of the Arbitrator in not correctly calculating the rent could be raised. The figure as claimed by the ECL is quoted in paragraph 73(1)(ii) of the award which has been accepted by the Arbitrator in the award.14. There is another aspect of the matter which disentitles the applicant from any relief in this application. A perusal of the judgment of the Delhi High Court in Section 34 of the 1996 Act proceedings clearly reveals that the point which is being raised here was raised before the Delhi High Court. The Delhi High Court also did not agree with the submission of the respondent--applicant after considering paragraphs 157 to 161 and proceeded to hold that the observations made in paragraph 160 do not render the impugned order to be interim in nature, and that the award finally decided the dispute which was subject matter of the reference.
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Nand Kishore Gupta Vs. State Of U.P
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is a strong possibility of encroachment on the land, which will affect the Project of Y.E.I.D.A. in public interest. In para 4 it was stated that hearing of oral and written objections will take several years causing indefinite delay in construction of interchange. The proposal was forwarded with recommendation signed by the Under Secretary, Industrial Development, Government of U.P., Special Secretary, Industrial Development ; Shri Arun Kumar Sinha, Secretary, Rehabilitation and Industrial Development Department; Government of U.P.; Shri V.N. Garg, Principal Secretary, Rehabilitation and Development, Government of U.P. on 12.2.2009 and by Shri Shailesh Krishna, the Principal Secretary to Chief Minister on 18.2.2009.As regard the acquisition of land for Y.E.I.D.A. for interchange in village Malupur for construction of Yamuna Expressway, Pargana Atmadpur, district Agra for acquisition of 4.5322 hects. of land the proposal with recommendation of District Magistrate, Agra on Form-X and the justification similar to and in the same language as in the case of village Kuberpur, district Agra was placed before the State Government alongwith the notings. The proposal bears recommendations and signature of Under Secretary, Industrial Development Department, Government of U.P. on 23.10.2008 ; Special Secretary, Industrial Development, Government of U.P. on 24.10.2008; Principal Secretary, Industrial Development and Commissioner on 30.11.2008 ; Special Secretary, Industrial Development on 10.12.2008 and the Secretary to Chief Minister on 15.12.2008.For village Tappal in Tehsil Khair, district Aligarh proposal for acquisition of 48.572 hect. of land for Y.E.I.D.A. for construction of Yamuna Expressway with the recommendation of the District Magistrate and justification for invoking urgency clause was placed before the State Government and was recommended and signed by the Under Secretary and Special Secretary, Industrial Development Department on 16.1.2009 ; Secretary, Rehabilitation and Industrial Development, Department of Government of U.P. on 16.1.2009 ; Principal Secretary, Industrial Development on 16.1.2009 and by the Secretary to the Chief Minister on the same day on 16.1.2009. The proposals were accepted by the State Government for acquisition and for invoking urgency clause for construction of Yamuna Expressway by Y.E.I.D.A." Ultimately, the High Court wrote a finding in the following words:- "The record produced before us by the State Government enclosing the material of invoking urgency clause and the satisfaction of the State Government on the said material, has satisfied us that the State Government had sufficient material and had applied its mind to record its opinion that there was urgency to acquire the land to dispense with the enquiry under Section 5A of the Act." We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.
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1[ds]23. We have now to see as to whether the challenge posed by the appellants herein about this acquisition not being for public purpose is justified or not. Shri Ranjit Kumar, Shri Debol Banerjee, learned Senior Counsel and Ms. Meenakshi Arora, learned Counsel appearing on behalf of the appellants, vehemently urged that this acquisition, in the first place, is colourable exercise of power. All the learned Counsel urged that the very nature the whole transaction showed was that the whole acquisition was tailor made for the respondent Company. The learned Counsel further urged that it was meant only for the benefit of the Company, inasmuch as, though the acquisition should have been made under the provisions of Part VII of the Act, it was carried out in terms of the provisions of the Part II of the Act, citing this to be an acquisition for public purpose. According to the learned Counsel, there already existed a road which was a functional road and Yamuna Expressway is only an excuse to develop the feeder road to connect the five proposed townships. The learned Counsel urged that the huge land of 25 million square meters has virtually been handed over to the respondent Company on a platter and, therefore, all this exercise was clearly not for the public purpose. It was further urged that theConcession Agreement dated 7.2.2003 wasinasmuch as, even if it was terminated, the land which was given to the Company for development, would have remained unaffected. It was further urged that considering the length of the lease period of 90 years, the land was virtually given to the Company for ever, and it was nothing but transferring the same in favour of the Company. It was then pointed out that it was only the Expressway which would revert back to the Government after 36 years, but not the land measuring about 25 million square meters, which would be wholly managed by the Company. In fact, the learned Counsel argued that this cannot be said to be an integrated Project, as the land for Expressway and the land for development have been treated on an entirely different and unequal footing. It was also pointed out that the present purpose was not a public purpose as envisaged in Section 3(f) of the Act. The learned Counsel pointed out that from the Agreement itself, it is clear that the entire cost of the acquisition is going to be borne by the Company and, therefore, there can be no doubt that the acquisition is for the Company and not for the public purpose. The learned Counsel argued that merely because the Company has paid the entire cost of acquisition alongwithRs.100/- per hectareper year by way of premium, it cannot be denied that it is only the private respondent who is bearing the entire cost of the acquisition and the State Government/YEIDA has not contributed anything. Heavily relying on the decision in Pratibha Nema & Ors. Vs. State of M.P. & Ors. [2003 (10) SCC 626 ], the learned Counsel argued that this issue needs to be addressed by this Court on the backdrop of this case.The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these plea and, in our opinion, correctly. After all, this was an acquisition for building up a highway and the abovementioned Writ Petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court. In fact, in Balbir Singhs case, it was pointed out that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers have raised the issues. The High Court has rightly held that the private interest is always affected to some extent in such large schemes requiring the acquisition of land. The High Court has rightly held that a holistic view had to be taken to look for an all round development without forgetting about our heritage, culture and traditions. We also, therefore, would not entertain the objections, feebly raised before us, individually.This takes us to the next point pertaining to the application of Sections 17(1) and 17(4) of the Act. The learned Counsel for the appellants have vociferously urged that there was no necessity whatsoever to apply the urgency clause to these acquisitions and further to avoid the enquiry under Section 5A of the Act. According to the learned Counsel, this dispensation of Section 5A enquiry was not only unjust, but added to the sufferings of the appellants who had lost their fertile land. It was pointed out that this Project was slumbering since 2001 and it was in order to infuse fictitious urgency that a reference to the Commonwealth Games was made. According to the appellants, Right to be heard was akin to the Fundamental Rights and its breach has rendered the whole acquisition exercise illegal. Numbers of authorities were relied upon by the appellants. The respondents, on the other hand, argued that there was material available before the Government justifying the invocation of the urgency clause. The respondents argued that, in fact, the High Court has returned the finding that there was material before the State Government for dispensing with the enquiry under Section 5A of the Act and that finding was based on the examination by the High Court of the records of the State Government. It was pointed out that going through the ordinary procedure for acquisition of land would have taken years for disposal of the objections while land was urgently required for public purpose, in this case, the construction of interchange under the Yamuna Expressway Project, which was absolutely essential for the purposes of running the highway. It was also pointed out by the respondents that because of the unnecessary litigation in the enquiries, the Project was hopelessly delayed and the cost had gone up from Rs.1,700 crores to whopping Rs.9,700 crores. It was also further pointed out that any waste of time would have invited the encroachments on the land, which would have added to the further trouble. The enormousness of the Project which required acquisition of 1,604 hectares of land involving 12,283 farmers, would have taken years if the enquiry under Section 5A was permitted and thereby, the cost would have still further soared up. Numbers of authorities were relied upon by the. The first and foremost thing which we must keep in mind while deciding these matters is that at least in the present two matters (Balbir Singhs case decided on 5.10.2009 and Nand Kishores case decided on 30.11.2009), the subject related only to the acquisition of few hectares of land as compared to the acquisition of large chunk which has not been challenged. Further, it is an admitted position that majority of the acquisition proceedings are over. In Balbir Singhs case also, the persons who challenged the Project, were 9 in number, owning about 7.09 hectares of land i.e. about 0.42% of the total land. It has been strongly argued on behalf of the State, the Company and YEIDA that the major activity of land acquisition process is over. It has been noted in Balbir Singhs case that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers out of such a large number of villages have raised the issues, leaving 139 farmers who had not taken the compensation. This is apart from the fact that only 9 Writ Petitioners came in that Writ Petition. The story in Nand Kishores Writ Petition which was disposed of by the High Court alongwith other Writ Petitions is no different. The learned Counsel appearing on behalf of the appellants could not deny the fact that the total number of petitioners concerned in these acquisition proceedings, coming up before the High Court, was extremely insignificant as compared to those who had accepted the compensation. Of course, that by itself may not be the only reason to hold against the appellants (petitioners), however, that fact will have to be kept in mind while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million square meters of land. The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of the land owners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom it will be extremely difficult now to turn back to square one.28. We must point out that at the time when the Project conceived in 2001, the present Company was not in existence. It came in existence only later on. This is an admitted position also. Therefore, it cannot be said that the whole Project was envisaged keeping this Company in view. That would be the first reason to reject the argument that the whole scheme was a result of colourable exercise of power. We also cannot ignore the fact that aenquiry was got done by the State by constituting a Commission of Enquiry under the Chairmanship of Mr. Justice Sidheshwar Narain. The said Commission of Enquiry submitted its Report in October, 2006 and it was duly accepted by both the Houses of the Legislature of the State of Uttar Pradesh. Again, we also cannot ignore that the aspects of the transparency have been examined by the Division Bench of the Allahabad High Court in a P.I.L., which was dismissed by a wellconsidered judgment, which remained unchallenged. We have already made reference to that judgment. Nobody has so far argued that any specific partial treatment was offered to the Company nor has it been pointed out at any stage that there was anything amiss with the tendering process or that the tender of contract to the Company herein was a foregone conclusion. We, therefore, cannot subscribe to the contention that this acquisition was a colourable exercise of power. We must say that there was a full transparency in the whole process and the whole process was checked, rechecked andleaving no scope to infer any bias in favour of the Company.29. It was pointed out that initially the award was preceded by issuance of an advertisement in the leading newspapers throughout the country. It was also pointed out that the offers were invited on the basis of a global tender and as many as 19 parties entered the fray, and that it is only thereafter that the present respondent Company was chosen for the award of the tender. Again, the essential features of the transaction appear to be that (i) Project was to be implemented on the Build Operate and Transfer model, (ii) Project conceived of the construction of the Expressway as well as development of land parcels at five different locations and (iii) the land for development was to be provided to the selected bidder on a lease of 90 years upon payment of acquisition cost and necessary lease rentals. There was, thus, a complete transparency in the whole affair. It is also to be seen that this was not a case where the exercise of power of eminent domain by the State was for any of the purposes set down in Section 40 of the Act. Further, it is not as if the power of acquisition was exercised by the State Government for the work or Project of the Company. Lastly, it is not a case where the power of exercise was exercised by the State Government so that the acquired land was to belong or vest permanently in the Company for its own purpose. It was pointed out that the lease is going to be for 90 years after which the whole land is going to revert back to the State Government, so also the whole land acquired and used actually for the purpose of the highway would also go back to the State after the period of 36 years, during which the Company would have the right to levy and collect the toll. It is not as if a public purpose is relevant in Part VII, where under Section 39, the previous consent of appropriate Government is required for execution of an agreement between the Government and the40 of the Act then puts a specific rider that the State Government shall not give the consent unless it is satisfied of any of the contingencies described in(a), (aa) and (b) thereof, which are as(1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A,(2), or by an enquiry held as hereinafterthat the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.This would suggest that even when the acquisition is meant for the Company, the concept of public purpose has to be at the back of mind of the acquiring body like Government. Here, of course, there is no question of any agreement with the Company as the three eventualities described under Section 40 of the Act are not available for the simple reason that the basic idea for the acquisition under Part VII of the Act is the total transfer of the ownership of the acquiring land in favour of the Company. That is obviously not present here. We do not see any factual background for holding that any agreement was contemplated in between the State Government and the Company or for that matter, YEIDA and the Company, as envisaged in Sections 39, 40 and 41 of the Act. It was tried to be canvassed before us that there would be a difference in concepts of a public purpose and the work useful to the public. We are not much impressed by this argument in view of the fact that there is absolutely no evidence to suggest that this is an acquisition for the Company, basically on account of the fact that the acquired land is not to vest with the Company. This was clearly a Project conceived and justified by the State Government, while the concessionaire was to be chosen only to implement the Project. The Project was going to be implemented on the basis of principles of BOT. Therefore, after the operating period is over, the assets of the Project were to be transferred to the State Government. There was going to be no vesting of land as in case that if the acquisition was being effected under Part VII of the Act. We, therefore, do not accept the argument that this was either a colourable exercise of power or was meant for the Company. We are not impressed by the argument that this was an acquisition for the Company. The High Court, in Balbir Singhs judgment, has correctly come to the conclusion that this acquisition was not meant only for the Company and on that count, it could not be said that this is not for the public purpose. The learned Counsel, however, vehemently argued that the whole compensation had come from the Company and, therefore, this acquisition cannot be said to be for a public purpose. We shall tackle this point a little later. However, before we proceed to do that, we must express on the utility of the Expressway, which was conceived, as also the development of five parcels of land.30. During the debate, our attention was invited to Section 3(f) of the Act, which contains a definition for `public purpose. It was pointed out that where the acquisition is for the Company, it cannot amount to a public purpose. There can be no dispute about this proposition that where the acquisition of land is for the companies, it cannot amount to a public purpose. It was, therefore, our endeavour to find out whether this land was for the Company and we are quite satisfied with a finding recorded by the High Court that this acquisition was not for the Company but was for the public purpose. The Expressway is a work of immense public importance. The State gains advantages from the construction of an Expressway and so does the general public. Creation of a corridor for fast moving traffic resulting into curtailing the traveling time, as also the transport of the goods, would be some factors which speak in favour of the Project being for the public purpose. Much was stated about the 25 million square meters of land being acquired for the five parcels of land. In fact, in our opinion, as has rightly been commented upon by the High Court, the creation of the five zones for industry, residence, amusement etc., would be complimentary to the creation of the Expressway. It cannot be forgotten that the creation of land parcels would give impetus to the industrial development of the State creating more jobs and helping the economy and thereby helping the general public. There can be no doubt that the implementation of the Project would result in coming into existence of five developed parcels/centers in the State for the use of the citizens. There shall, thus, be the planned development of this otherwise industrially backward area. The creation of these five parcels will certainly help the maximum utilization of the Expressway and the existence of an Expressway for the fast moving traffic would help the industrial culture created in the five parcels. Thus, both will be complimentary to each other and can be viewed as parts of an integral scheme. Therefore, it cannot be said that it is not a public purpose.31. We must, at this stage, take into account the argument that the whole compensation is coming wholly from the Company and not from the Government or from YEIDA. The appellants invited our attention to Clause 4.1(d) of the Concession Agreement. On that basis, it was argued that the Company has paid the compensation cost and, therefore, the acquisition is clearly covered under Part VII of the Act, and there may be no public purpose if the acquisition is made for the Company and it is the Company who has to shell out the whole compensation. Now, this argument is clearly incorrect. Even if we accept for the sake of argument that all this compensation is coming from the Company, we must firstly bear it in mind that the Company gets no proprietary or ownership rights over the Project assets. Now, if it is presumed that the compensation is coming from the Company, then it will have to be held that the whole assets would go to the Company. At least that is envisaged in Part VII of the Act. Here, that is not the case. The assets are to revert back to the acquiring body or, as the case may be, the Government. Even the lands which are utilized for the construction of the Expressway are to go back to the Government barely after 36 years i.e. after the Company has utilized its rights to recover the toll on the Expressway. Secondly, it must be borne in mind that the Concession Agreement has been executed in February, 2003, whereas the acquisition process started somewhere in the month of September, 2007. When the Concession Agreement was executed, the cost factor was not known. The acquiring body was only to make available the land to the concessionaire to implement the Project. There would be number of difficulties arising, as for example, it would be clearly not contemplated that the land would be made available without any value or that there would no scheme for the State Government for recovering the expenses that it would incur in obtaining the land. The learned Counsel appearing for the State as also for the Company and YEIDA argued that in order to overcome and iron out such difficulties, the Agreement provides that the land would be leased on a premium equivalent to the acquisition cost. This argument proceeds on the basis of Clause 4.3 C of the Concession Agreement. It is to be noted then that the premium of the land was not going to be just the acquisition cost, but also the lease rent ofe. Therefore, theState Government was to earnfor the total acquired land, which was about 25 million square meters over and above the compensation to be decided. The mention of the compensation amount in addition to the lease money ofwould clearly provide that the whole compensation was not going to be paid by the Company alone. This is apart from the fact that through this agreement, only the extent of the compensation payable by the Company to YEIDA was decided. However, once all the amounts went to the coffers of YEIDA, it would lose its independent character as a premium. When it goes into the coffers of YEIDA, it is the YEIDA who would make the payments of the estimated compensation and thereby it would be as if the compensation is paid not by the Company, but by YEIDA. The respondents have relied on the law laid down in Pratibha Nemas Case [cited supra], more particularly, paragraphs 24 and 25 therein. The respondents also argued relying upon the decision in Naihati Municipality & Ors. Vs. Chinmoyee Mukherjee & Ors. [1996 (10) SCC 632 ]. The respondents argued that the law laid down in Pratibha Nemas Case (cited supra) emanates from the judgment in Naihati Municipality & Ors. Vs. Chinmoyee Mukherjee & Ors. (cited supra).32. Two judgments in State of Karnataka & Ors. Vs. All India Manufacturers Organization & Ors. [cited supra] and Sooraram Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy District & Ors. etc. etc. (cited supra) were pressed in service by the respondents.The respondents then fall back upon the nature of the transaction, saying that since the whole transaction is on the BOT basis, the Government has merely chosen a third party agency to implement the Project instead of taking up itself the task of building, designing, financing or running the Project. It was pointed out that in such contracts, the assets did not go to the private enterprise which was chosen by the Government. On the other hand, the assets revert to the Government and, therefore, the BOT Project can never be akin to the acquisition of land for a Company under Part VII of the Act, where the land and the assets vest and belong to the Company. The respondents argued that when a BOT contract is tested in the light of the provisions of Part VII of the Act, as also the Land Acquisition (Companies) Rules, 1963, it would come out that there has to be an agreement between the State and the Company, which necessarily provides for the payment of cost of acquisition to the Government. It must entail the transfer of such land to the Company. Similarly, under Rule 5 of the Rules of 1963, the agreement must itself make provision that the land will be utilized only for the purposes for which it was acquired and if the Company commits breach of any condition of the agreement, the Government would be entitled to declare the transfer of land to it to be null and void, so also if the Company fails to utilize the entire land acquired, the unutilized portion would revert to the Government. The respondents argued that in a BOT contract, the land is only leased to a third party agency for the purposes of implementation of the Project. There is no occasion for declaring the transfer of land to be null and void. There would also be no occasion for reversion of the utilized land of the State Government. The respondents, therefore, argued that a BOT contract can never be contemplated as falling under Part VII of thehave already discussed the factual situation here for pointing out that this acquisition was indeed for the public purpose and cannot be held to be for respondent Company. In that view, the criticism is not justified. The decision in Pandit Jhandu Lal Vs. State of Punjab (cited supra) was also referred to and, more particularly, the observations in Paragraph 8 therein. There can be no dispute about the principles laid down; however, as we have already pointed out, this case has been thoroughly considered in Sooraram Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy District & Ors. etc. etc. (cited supra). We have already returned a finding that the compensation in this case does not come from the respondent Company alone. We approve of the finding returned by the High Court in that behalf. During the debate, the decision in Devinder Singh & Ors. Vs. State of Punjab & Ors. [2008(1) SCC 728] was also referred to. It was urged that there was a conflict in this decision and the decision in Pratibha Nemas Case (cited supra). This was a case where the petitioners who were the owner of the agricultural lands, had challenged the acquisition of lands for M/s. International Tractors Ltd. It was claimed that the land was being acquired for public purpose i.e. setting up the Ganesha Project of M/s. International Tractors Ltd. at various villages. The High Court had held that the land acquisition was for public purpose. This Court explained the public purpose as defined in Section 3(f) of the Act and noted that the aforementioned Ganesha Project was not a Project of the State, but the one undertaken by the Company M/s. International Tractors Ltd. The Court then went on to consider Sections 40 and 41 of the Act alongwith Rule 4 of the Land Acquisition (Companies) Rules, 1963 and came to the conclusion that the same could not be a public purpose as the whole compensation was coming from the coffers of the Company. In that view, the Court further came to the conclusion that the State not having followed the provisions of Sections 40 and 41 of the Act, the whole process had sufferedCourt, however, refused to go into the nicety of the question and observed that in a case of acquisition for a public Company, public purpose is not to be assumed and the point of distinction between acquisition of lands under Part II and Part VII of the Act would be the source of funds to cover the cost of acquisition. The Court also considered the judgment of this Court in Smt. Somavanti & Ors. Vs. The State of Punjab & Ors. (cited supra), Jage Ram & Ors. Vs. State of Haryana & Ors. [1971 (1) SCC 671 ] and Shyam Behari & Ors. Vs. State of Madhya Pradesh & Ors. [AIR 1965 SC 427 ]. Ultimately, the Court came to the conclusion that the necessary provisions not having been found, the view of the High Court was not correct, whereby it had upheld the land acquisition, holding it to be for the public purpose. We have closely seen the judgment; however, the factual situation in the judgment is quite different. In our opinion, the judgment will not help the appellants to contend that the present land acquisition is not for public purpose. We also do not think that there is any serious conflict between the decision in Pratibha Nemas Case (cited supra) and the decision in Devinder Singh & Ors. Vs. State of Punjab & Ors. (cited supra), so as to require a reference to the larger Bench. In our opinion, the decision in Pratibha Nemas Case (cited supra) applies to the fact situation in this case. Therefore, considering the overall factual situation, we are of the opinion that the High Court was right in holding that the acquisition was made for the public purpose. We find from the order of the High Court that the High Court has considered the question of public purpose keeping in mind the correct principles of law. We are, therefore, of the opinion that the contention raised by the learned Counsel for the appellants that this acquisition was not for the public purpose for various reasons which we have discussed, is not correct.38.parties.39. Before considering the issue, we must take stock of the finding returned by the High Court. In the judgment in Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors. (Civil Misc. Writ Petition No.31314 of 2009), the High Court took stock of the allegations regarding malafides and dispensing with the enquiry under Section 5A of the Act by referring to Paragraph Nos. 20, 21, 28, 29, 30, 31 and 32 of the Reply filed on behalf of the State Government through an affidavit of one Shri Vinod Kumar Singh, ADM, Land Acquisition, Agra, wherein it was pointed out that the Project was on the mammoth scale and there was a great deal of possibility of encroachments if the Project was allowed to linger. The High Court took note of the contention that YEIDA deposited 70% of the estimated compensation on 29.5.2009 itself, since 10% of the estimated compensation was already deposited by the acquiring body (YEIDA). The High Court then referred to the various clauses of the Concession Agreement like Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c) & (d) to know about the exact nature of the job which was required to be done for building the Expressway. It was after this that the High Court had recorded a finding that the integrated Project was to cover a large area of land and the requirement was of 25 million square meters of land to be acquired. The High Court, therefore, noted the plea raised to the effect that the State Government took correct decision to invoke the urgency clause, as on an enquiry into disposal of individual objections as contemplated under Section 5A of the Act, the Project itself would have lost all value and efficacy. The High Court also noted the plea raised by YEIDA and the State Government about the likelihood of encroachment. The High Court then referred to the two decisions of this Court in Sheikhar Hotels Gulmohar Enclave & Anr. Vs. State of Uttar Pradesh & Ors. [2008(14) SCC 716] and First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr. [2002 (4) SCC 160 ]. The High Court also referred to the counter affidavit of one Shri V.C. Srivastava, Addl. General Manager, Jaypee Infratech Ltd. (owned by Jaiprakash Industries Ltd.). The High Court then took stock of the plea raised on behalf of the respondents on the basis of more than 25 judgments of this Court. The High Court then referred to the decision of this Court in State of Punjab & Anr. Vs. Gurdial Singh & Ors. [1980 (2) SCC 471 ] and Om Prakash & Anr. Vs. State of U.P. & Ors. [1998 (6) SCC 1 ], as also Babu Ram & Anr. Vs. State of Haryana & Anr. [2009 (10) SCC 115 ]. The High Court also referred to the decision in Manju Lata Agrawal Vs. State of U.P. & Ors. [2007(9) ADJ 447 (DB)], Sudhir Chandra Agrawal Vs. State of U.P. [2008 (3) ADJ 289 (DB)] and Munshi Singh Vs. State of U.P. [2009 (8) ADJ 360 (DB)], which all were the decisions of the Allahabad High Court itself. The Court then referred to the delay on account of the litigations from 2001 till 2008 and referred to the contention raised on behalf of the appellants relying on the judgment in Essco Fabs Pvt. Ltd. & Anr. Vs. State of Haryana & Anr. etc. etc. [2009 (2) SCC 377 ], Mahender Pal & Ors. Vs. State of Haryana & Ors. [2009 (14) SCC 281 ] and Babu Ram & Anr. Vs. State of Haryana & Anr. (citedhave deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.
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### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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is a strong possibility of encroachment on the land, which will affect the Project of Y.E.I.D.A. in public interest. In para 4 it was stated that hearing of oral and written objections will take several years causing indefinite delay in construction of interchange. The proposal was forwarded with recommendation signed by the Under Secretary, Industrial Development, Government of U.P., Special Secretary, Industrial Development ; Shri Arun Kumar Sinha, Secretary, Rehabilitation and Industrial Development Department; Government of U.P.; Shri V.N. Garg, Principal Secretary, Rehabilitation and Development, Government of U.P. on 12.2.2009 and by Shri Shailesh Krishna, the Principal Secretary to Chief Minister on 18.2.2009.As regard the acquisition of land for Y.E.I.D.A. for interchange in village Malupur for construction of Yamuna Expressway, Pargana Atmadpur, district Agra for acquisition of 4.5322 hects. of land the proposal with recommendation of District Magistrate, Agra on Form-X and the justification similar to and in the same language as in the case of village Kuberpur, district Agra was placed before the State Government alongwith the notings. The proposal bears recommendations and signature of Under Secretary, Industrial Development Department, Government of U.P. on 23.10.2008 ; Special Secretary, Industrial Development, Government of U.P. on 24.10.2008; Principal Secretary, Industrial Development and Commissioner on 30.11.2008 ; Special Secretary, Industrial Development on 10.12.2008 and the Secretary to Chief Minister on 15.12.2008.For village Tappal in Tehsil Khair, district Aligarh proposal for acquisition of 48.572 hect. of land for Y.E.I.D.A. for construction of Yamuna Expressway with the recommendation of the District Magistrate and justification for invoking urgency clause was placed before the State Government and was recommended and signed by the Under Secretary and Special Secretary, Industrial Development Department on 16.1.2009 ; Secretary, Rehabilitation and Industrial Development, Department of Government of U.P. on 16.1.2009 ; Principal Secretary, Industrial Development on 16.1.2009 and by the Secretary to the Chief Minister on the same day on 16.1.2009. The proposals were accepted by the State Government for acquisition and for invoking urgency clause for construction of Yamuna Expressway by Y.E.I.D.A." Ultimately, the High Court wrote a finding in the following words:- "The record produced before us by the State Government enclosing the material of invoking urgency clause and the satisfaction of the State Government on the said material, has satisfied us that the State Government had sufficient material and had applied its mind to record its opinion that there was urgency to acquire the land to dispense with the enquiry under Section 5A of the Act." We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.
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job which was required to be done for building the Expressway. It was after this that the High Court had recorded a finding that the integrated Project was to cover a large area of land and the requirement was of 25 million square meters of land to be acquired. The High Court, therefore, noted the plea raised to the effect that the State Government took correct decision to invoke the urgency clause, as on an enquiry into disposal of individual objections as contemplated under Section 5A of the Act, the Project itself would have lost all value and efficacy. The High Court also noted the plea raised by YEIDA and the State Government about the likelihood of encroachment. The High Court then referred to the two decisions of this Court in Sheikhar Hotels Gulmohar Enclave & Anr. Vs. State of Uttar Pradesh & Ors. [2008(14) SCC 716] and First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr. [2002 (4) SCC 160 ]. The High Court also referred to the counter affidavit of one Shri V.C. Srivastava, Addl. General Manager, Jaypee Infratech Ltd. (owned by Jaiprakash Industries Ltd.). The High Court then took stock of the plea raised on behalf of the respondents on the basis of more than 25 judgments of this Court. The High Court then referred to the decision of this Court in State of Punjab & Anr. Vs. Gurdial Singh & Ors. [1980 (2) SCC 471 ] and Om Prakash & Anr. Vs. State of U.P. & Ors. [1998 (6) SCC 1 ], as also Babu Ram & Anr. Vs. State of Haryana & Anr. [2009 (10) SCC 115 ]. The High Court also referred to the decision in Manju Lata Agrawal Vs. State of U.P. & Ors. [2007(9) ADJ 447 (DB)], Sudhir Chandra Agrawal Vs. State of U.P. [2008 (3) ADJ 289 (DB)] and Munshi Singh Vs. State of U.P. [2009 (8) ADJ 360 (DB)], which all were the decisions of the Allahabad High Court itself. The Court then referred to the delay on account of the litigations from 2001 till 2008 and referred to the contention raised on behalf of the appellants relying on the judgment in Essco Fabs Pvt. Ltd. & Anr. Vs. State of Haryana & Anr. etc. etc. [2009 (2) SCC 377 ], Mahender Pal & Ors. Vs. State of Haryana & Ors. [2009 (14) SCC 281 ] and Babu Ram & Anr. Vs. State of Haryana & Anr. (citedhave deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.
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P. GOPINATHAN PILLAI Vs. UNIVERSITY OF KERALA & ORS
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Court dated 14.06.2005 in W.P.(C) No.3141 of 2004(Y), Dr. B. Vijayakumar vs. The University of Kerala and others. In the above case the writ-petitioner was also working as Director, and reliance was placed on the judgment in Writ Appeal No.180 of 1992. The learned Single Judge relying on the Division Bench judgment in Dr. Sivadasan Pillai allowed the writ petition. In paragraph 3 of the judgment learned Single Judge himself has observed as follows: 3. The Learned Counsel for the University would submit that the said Dr. K. Sivadasan Pillai was retaining his lien in the Department of Education and therefore his case cannot be treated at par with that of the petitioner. When a Division Bench of this Court categorically holds that the post of Director in CACEE is the post of a teacher and therefore the incumbent is entitled to continue till he attains the age of 60 years, then I need not look any further to hold that the petitioner also is holding the post of teacher and therefore entitled to continue till he attains 60 years of age. Therefore, I have absolutely no hesitation in holding that the petitioner is holding the post of a teacher as Director in the CACEE. As such, he is entitled to continue in service till he attains the age of 60 years. It is declared so. The petitioner will be entitled to all consequential benefits. The Writ Petition is allowed as above but without no order as to costs. 32. Learned Single Judge although noted the distinguishing feature of case of Dr. Pillai that he had lien in the Department of Education, but without adverting to the distinguish facts of Division Bench judgment and without adverting as to how the writ petitioner was a Teacher within the meaning of Kerala University Act, the writ petition was allowed. The above judgment of the learned Single Judge having mechanically followed the Division Bench judgment in W.A.No.180 of 1992 cannot come to the rescue of the appellant. 33. Another judgment relied by the appellant is the judgment of the Kerala High Court dated 14.02.2006 in Writ Petition (C) No.25669 of 2004(E) in Dr. V. Reghu vs. The University of Kerala and another. Learned Single Judge in the above case also relying on the Division Bench judgment in W.A. No.180 of 1992 filed by Dr.K. Sivadasan Pillai has made the following observation in paragraph 8: 8……………There is overwhelming evidence and materials on record to show that the petitioner by discharging the duties of Assistant Director of CACEE has been imparting instruction at the Centre right from his appointment in the year 1980. 34. Learned Single Judge has, thus, relied on the claim of the writ petitioner that while discharging the duty of Assistant Director the petitioner has been imparting instruction at the Centre. How only by imparting instruction the petitioner had become Teacher within the meaning of Section 2(27) and 2(28) was neither been dealt with nor considered. 35. Another case which has been relied by the appellant is judgment dated 25.05.2012 in W.P. (C)No.15447 of 2007(L), M.N.C. Bose vs. University of Kerala and Ors. In the above case, the writ petitioner was working as Director of Students Services which was a non-teaching post as per Ordinances of the University which fact was noticed in paragraph 2 of the judgment. Learned Single Judge proceeded to held that while working as Director of Students Services the writ petitioner as per duties and functions was imparting instruction. The said case has no relevance in the facts of the present case since the post of Students Services was admittedly post within the University whereas the none of the posts in Centre is included in the Ordinances hence the said case is clearly distinguishable. 36. Learned counsel for the appellant has also relied on the judgment of this Court in S. Ramamohana Rao vs. A.P. Agricultural University and another, 1997 (8) SCC 350. In the above case the appellant was working as a Director of Physical Director in the Bapatla Agricultural College. The appellant was initially appointed as Physical Director in Agricultural College which was a Government College which College stood transferred to the Andhra Pradesh University, when it was formed, the services of the appellant stood transferred to the Agricultural University and he continued to work as Director in the said University. This Court noted the definition of Teacher in the University Statutes and came to the conclusion that Physical Director is also Teacher within the meaning of Section 2(n) of the Andhra Pradesh Agricultural University Act, 1963. The said judgment has no bearing in the present case since admittedly the appellant in the said case was working in the University as Director of Physical Education. 37. We may also notice one of the letters dated 31.10.2014 brought on record as Annexure-P-17 to the petition which is a communication by the Government of Kerala according sanction for merging the Centre for Adult, Continuing Education & Extension which is to the following effect: ORDER Sanction is accorded for merging the Centre for Adult, Continuing Education & Extension (CACEE) which is functioning as Self Financing Centre under the University of Kerala, with Institute of Distance Education so that the department can function in dual mode as Institute of Distance and Adult Continuing Education. (By order of the Governor) Dr. K.M. ABRAHAM Additional Chief Secretary. 38. As per the Government letter Centre has been merged with Institute of Distance Education, what are the consequences of merger of Centre with Institute of Distance Education have neither been explained by the appellant nor there are any material to come to the conclusion that by such merger the Centre shall become Centre maintained by the University. The above letter of the Government also supports our conclusion that Centre is not maintained by the University and it is Self-Financing Centre. The said letter also in no manner supports the case of the appellant as the claim of the appellant as raised in this appeal.
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0[ds]18. The judgment of the High Court does not mention any details of the establishment, nature and organisation of the Centre i.e. CACEE19. Although rejoinder-affidavit has been filed by the appellant to the above counter-affidavit of the University but neither there is any reply to the counter-affidavit nor details mentioned in paragraphs 5 and 6 of the counter-affidavit regarding nature of the establishment of the Centre has been refuted. We, thus, proceed to rely on the pleadings made in the counter-affidavit regarding the establishment and the nature of the Centre20. The Centre i.e. CACEE came to be established on temporary basis as planned Scheme established by the Government of India for the purpose of eradicating illiteracy. The University Grants Commission also funded the Centre and as pleaded in the counter- affidavit after 31.03.1997 no Agency having come forward to sponsor the Scheme the Syndicate of the University resolved to restructure CACEE as a Self- Supporting Centre. The University has undertaken to render all the Administrative work of CACEE26. The Centre is not a College within the meaning of Section 2(7) since as per the pleadings of the University, Centre is neither maintained nor affiliated to the University. There are no materials on record also to indicate that the Centre is an institution recognised by the University within the meaning of Section 2(19). It is true that the Centre is being run as a Centre under the administrative control of the University. The definition of Teacher of University in Section 2(28) also refers to a person employed as Teacher in any institution maintained by the University. The High Court in the impugned judgment has held that the appellant was never employed as Teacher hence he is not covered by Section 2(28). From the pleadings on the record and the materials which are brought on the record it is apparent that the appellant is not covered by definition of Teacher or the Teacher of the University under Section 2(27) and 2(28) of the Kerala University Act, 1974. When the appellant does not fulfil the requirement of definition of Teacher or Teacher of University, he cannot claim applicability of Statute 10 of Chapter 3 of the StatutesEven if it is assumed that the appellant is imparting instruction in different courses in the Centre that itself cannot make the appellant Teacher within the meaning of Section 2(27) and 2(28). The appellant having never been appointed as Teacher he is not covered by the definition of Teacher of the University32. Learned Single Judge although noted the distinguishing feature of case of Dr. Pillai that he had lien in the Department of Education, but without adverting to the distinguish facts of Division Bench judgment and without adverting as to how the writ petitioner was a Teacher within the meaning of Kerala University Act, the writ petition was allowed. The above judgment of the learned Single Judge having mechanically followed the Division Bench judgment in W.A.No.180 of 1992 cannot come to the rescue of the appellantThe said case has no relevance in the facts of the present case since the post of Students Services was admittedly post within the University whereas the none of the posts in Centre is included in the Ordinances hence the said case is clearly distinguishableThe said judgment has no bearing in the present case since admittedly the appellant in the said case was working in the University as Director of Physical Education38. As per the Government letter Centre has been merged with Institute of Distance Education, what are the consequences of merger of Centre with Institute of Distance Education have neither been explained by the appellant nor there are any material to come to the conclusion that by such merger the Centre shall become Centre maintained by the University. The above letter of the Government also supports our conclusion that Centre is not maintained by the University and it is Self-Financing Centre. The said letter also in no manner supports the case of the appellant as the claim of the appellant as raised in this appeal.
| 0 | 4,707 | 736 |
### 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:
Court dated 14.06.2005 in W.P.(C) No.3141 of 2004(Y), Dr. B. Vijayakumar vs. The University of Kerala and others. In the above case the writ-petitioner was also working as Director, and reliance was placed on the judgment in Writ Appeal No.180 of 1992. The learned Single Judge relying on the Division Bench judgment in Dr. Sivadasan Pillai allowed the writ petition. In paragraph 3 of the judgment learned Single Judge himself has observed as follows: 3. The Learned Counsel for the University would submit that the said Dr. K. Sivadasan Pillai was retaining his lien in the Department of Education and therefore his case cannot be treated at par with that of the petitioner. When a Division Bench of this Court categorically holds that the post of Director in CACEE is the post of a teacher and therefore the incumbent is entitled to continue till he attains the age of 60 years, then I need not look any further to hold that the petitioner also is holding the post of teacher and therefore entitled to continue till he attains 60 years of age. Therefore, I have absolutely no hesitation in holding that the petitioner is holding the post of a teacher as Director in the CACEE. As such, he is entitled to continue in service till he attains the age of 60 years. It is declared so. The petitioner will be entitled to all consequential benefits. The Writ Petition is allowed as above but without no order as to costs. 32. Learned Single Judge although noted the distinguishing feature of case of Dr. Pillai that he had lien in the Department of Education, but without adverting to the distinguish facts of Division Bench judgment and without adverting as to how the writ petitioner was a Teacher within the meaning of Kerala University Act, the writ petition was allowed. The above judgment of the learned Single Judge having mechanically followed the Division Bench judgment in W.A.No.180 of 1992 cannot come to the rescue of the appellant. 33. Another judgment relied by the appellant is the judgment of the Kerala High Court dated 14.02.2006 in Writ Petition (C) No.25669 of 2004(E) in Dr. V. Reghu vs. The University of Kerala and another. Learned Single Judge in the above case also relying on the Division Bench judgment in W.A. No.180 of 1992 filed by Dr.K. Sivadasan Pillai has made the following observation in paragraph 8: 8……………There is overwhelming evidence and materials on record to show that the petitioner by discharging the duties of Assistant Director of CACEE has been imparting instruction at the Centre right from his appointment in the year 1980. 34. Learned Single Judge has, thus, relied on the claim of the writ petitioner that while discharging the duty of Assistant Director the petitioner has been imparting instruction at the Centre. How only by imparting instruction the petitioner had become Teacher within the meaning of Section 2(27) and 2(28) was neither been dealt with nor considered. 35. Another case which has been relied by the appellant is judgment dated 25.05.2012 in W.P. (C)No.15447 of 2007(L), M.N.C. Bose vs. University of Kerala and Ors. In the above case, the writ petitioner was working as Director of Students Services which was a non-teaching post as per Ordinances of the University which fact was noticed in paragraph 2 of the judgment. Learned Single Judge proceeded to held that while working as Director of Students Services the writ petitioner as per duties and functions was imparting instruction. The said case has no relevance in the facts of the present case since the post of Students Services was admittedly post within the University whereas the none of the posts in Centre is included in the Ordinances hence the said case is clearly distinguishable. 36. Learned counsel for the appellant has also relied on the judgment of this Court in S. Ramamohana Rao vs. A.P. Agricultural University and another, 1997 (8) SCC 350. In the above case the appellant was working as a Director of Physical Director in the Bapatla Agricultural College. The appellant was initially appointed as Physical Director in Agricultural College which was a Government College which College stood transferred to the Andhra Pradesh University, when it was formed, the services of the appellant stood transferred to the Agricultural University and he continued to work as Director in the said University. This Court noted the definition of Teacher in the University Statutes and came to the conclusion that Physical Director is also Teacher within the meaning of Section 2(n) of the Andhra Pradesh Agricultural University Act, 1963. The said judgment has no bearing in the present case since admittedly the appellant in the said case was working in the University as Director of Physical Education. 37. We may also notice one of the letters dated 31.10.2014 brought on record as Annexure-P-17 to the petition which is a communication by the Government of Kerala according sanction for merging the Centre for Adult, Continuing Education & Extension which is to the following effect: ORDER Sanction is accorded for merging the Centre for Adult, Continuing Education & Extension (CACEE) which is functioning as Self Financing Centre under the University of Kerala, with Institute of Distance Education so that the department can function in dual mode as Institute of Distance and Adult Continuing Education. (By order of the Governor) Dr. K.M. ABRAHAM Additional Chief Secretary. 38. As per the Government letter Centre has been merged with Institute of Distance Education, what are the consequences of merger of Centre with Institute of Distance Education have neither been explained by the appellant nor there are any material to come to the conclusion that by such merger the Centre shall become Centre maintained by the University. The above letter of the Government also supports our conclusion that Centre is not maintained by the University and it is Self-Financing Centre. The said letter also in no manner supports the case of the appellant as the claim of the appellant as raised in this appeal.
### Response:
0
### Explanation:
18. The judgment of the High Court does not mention any details of the establishment, nature and organisation of the Centre i.e. CACEE19. Although rejoinder-affidavit has been filed by the appellant to the above counter-affidavit of the University but neither there is any reply to the counter-affidavit nor details mentioned in paragraphs 5 and 6 of the counter-affidavit regarding nature of the establishment of the Centre has been refuted. We, thus, proceed to rely on the pleadings made in the counter-affidavit regarding the establishment and the nature of the Centre20. The Centre i.e. CACEE came to be established on temporary basis as planned Scheme established by the Government of India for the purpose of eradicating illiteracy. The University Grants Commission also funded the Centre and as pleaded in the counter- affidavit after 31.03.1997 no Agency having come forward to sponsor the Scheme the Syndicate of the University resolved to restructure CACEE as a Self- Supporting Centre. The University has undertaken to render all the Administrative work of CACEE26. The Centre is not a College within the meaning of Section 2(7) since as per the pleadings of the University, Centre is neither maintained nor affiliated to the University. There are no materials on record also to indicate that the Centre is an institution recognised by the University within the meaning of Section 2(19). It is true that the Centre is being run as a Centre under the administrative control of the University. The definition of Teacher of University in Section 2(28) also refers to a person employed as Teacher in any institution maintained by the University. The High Court in the impugned judgment has held that the appellant was never employed as Teacher hence he is not covered by Section 2(28). From the pleadings on the record and the materials which are brought on the record it is apparent that the appellant is not covered by definition of Teacher or the Teacher of the University under Section 2(27) and 2(28) of the Kerala University Act, 1974. When the appellant does not fulfil the requirement of definition of Teacher or Teacher of University, he cannot claim applicability of Statute 10 of Chapter 3 of the StatutesEven if it is assumed that the appellant is imparting instruction in different courses in the Centre that itself cannot make the appellant Teacher within the meaning of Section 2(27) and 2(28). The appellant having never been appointed as Teacher he is not covered by the definition of Teacher of the University32. Learned Single Judge although noted the distinguishing feature of case of Dr. Pillai that he had lien in the Department of Education, but without adverting to the distinguish facts of Division Bench judgment and without adverting as to how the writ petitioner was a Teacher within the meaning of Kerala University Act, the writ petition was allowed. The above judgment of the learned Single Judge having mechanically followed the Division Bench judgment in W.A.No.180 of 1992 cannot come to the rescue of the appellantThe said case has no relevance in the facts of the present case since the post of Students Services was admittedly post within the University whereas the none of the posts in Centre is included in the Ordinances hence the said case is clearly distinguishableThe said judgment has no bearing in the present case since admittedly the appellant in the said case was working in the University as Director of Physical Education38. As per the Government letter Centre has been merged with Institute of Distance Education, what are the consequences of merger of Centre with Institute of Distance Education have neither been explained by the appellant nor there are any material to come to the conclusion that by such merger the Centre shall become Centre maintained by the University. The above letter of the Government also supports our conclusion that Centre is not maintained by the University and it is Self-Financing Centre. The said letter also in no manner supports the case of the appellant as the claim of the appellant as raised in this appeal.
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Asha & Others Vs. United India Insurance Co. Ltd. & Another
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forty-two only). TABLE This salary certificate is for accident compensation court case. 4. It is urged that the Insurance Company could not have filed an appeal on any ground other than that available under Section 149 of the Motor Vehicles Act. It was submitted that a joint appeal was not maintainable. In support of this submission reliance was placed upon National Insurance Co. Ltd. v. Nicolletta Rohtagi (2002) 7 SCC 456 : 2002 SCC (Cri) 1788 (dt. 17-9-2002), wherein in para 21 it is stated as follows: (SCC p. 469) 21. In Chinnama George v. N.K. Raju (2000) 4 SCC 130 : 2000 SCC (Cri) 780 it was held that if none of the conditions as contained in sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it. 5. In Chinnama George (2000) 4 SCC 130 : 2000 SCC (Cri) 780 ) an earlier judgment in Narendra Kumar v. Yarenissa (1998) 9 SCC 202 : 1999 SCC (Cri) 245) was cited wherein it had been held that if an award had been made against the tortfeasor as well as the insurer the appeal could not be dismissed but the tortfeasor could proceed with the appeal after deleting the name of the insurer. In spite of this judgment having been shown to the Court it was observed in para 10, as follows: (SCC p. 136) 10. There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation a joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other interpretation will defeat the provision of sub-section (2) of Section 149 of the Act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer. 6. With this conflict of decisions reference may have had to be made to a larger Bench. However, in H.S. Ahammed Hussain v. Irfan Ahammed (2002) 6 SCC 52 : 2002 SCC (Cri) 1263 (cit. 9-7-2002), all these judgments have been considered. Chinnama George (2000) 4 SCC 130 : 2000 SCC (Cri) 780 ) has been distinguished and it has been finally held that a joint appeal was maintainable by deleting the name of the insurance company. We are in agreement with this view. 7. Further the question whether the appeal was maintainable, without deleting the name of the Insurance Company, was one which should have been agitated before the High Court. This question was not agitated before the High Court at all. It is an admitted position that the award was against both the owners and the Insurance Company. To that extent the owners were also aggrieved. They definitely had a right to maintain an appeal. So long as the owner was a party to the appeal the mere fact that the name of the Insurance Company was not deleted (as no such objection was taken before the High Court) is no ground for setting aside the impugned order. 8. It was next urged that the award was against the owners of both the vehicles and against the two insurance companies. It was pointed out that the other owner and the other insurance company had not filed any appeal. It was submitted that the High Court should not have interfered on the appeal of only one party. We see no substance in this submission. Merely because the other owner does not file an appeal does not mean that a party aggrieved cannot maintain his own appeal. 9. Lastly, it was submitted that the salary certificate shows that the salary of the deceased was Rs. 8632. It was submitted that the High Court was wrong in taking the salary to be Rs. 6642. It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards LIC, society charges and HBA, etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore right in so holding.
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0[ds]This question was not agitated before the High Court at all. It is an admitted position that the award was against both the owners and the Insurance Company. To that extent the owners were also aggrieved. They definitely had a right to maintain an appeal. So long as the owner was a party to the appeal the mere fact that the name of the Insurance Company was not deleted (as no such objection was taken before the High Court) is no ground for setting aside the impugned order. We see no substance in this submission. Merely because the other owner does not file an appeal does not mean that a party aggrieved cannot maintain his own appealWe are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore right in so holding.
| 0 | 1,340 | 207 |
### 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:
forty-two only). TABLE This salary certificate is for accident compensation court case. 4. It is urged that the Insurance Company could not have filed an appeal on any ground other than that available under Section 149 of the Motor Vehicles Act. It was submitted that a joint appeal was not maintainable. In support of this submission reliance was placed upon National Insurance Co. Ltd. v. Nicolletta Rohtagi (2002) 7 SCC 456 : 2002 SCC (Cri) 1788 (dt. 17-9-2002), wherein in para 21 it is stated as follows: (SCC p. 469) 21. In Chinnama George v. N.K. Raju (2000) 4 SCC 130 : 2000 SCC (Cri) 780 it was held that if none of the conditions as contained in sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it. 5. In Chinnama George (2000) 4 SCC 130 : 2000 SCC (Cri) 780 ) an earlier judgment in Narendra Kumar v. Yarenissa (1998) 9 SCC 202 : 1999 SCC (Cri) 245) was cited wherein it had been held that if an award had been made against the tortfeasor as well as the insurer the appeal could not be dismissed but the tortfeasor could proceed with the appeal after deleting the name of the insurer. In spite of this judgment having been shown to the Court it was observed in para 10, as follows: (SCC p. 136) 10. There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation a joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other interpretation will defeat the provision of sub-section (2) of Section 149 of the Act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer. 6. With this conflict of decisions reference may have had to be made to a larger Bench. However, in H.S. Ahammed Hussain v. Irfan Ahammed (2002) 6 SCC 52 : 2002 SCC (Cri) 1263 (cit. 9-7-2002), all these judgments have been considered. Chinnama George (2000) 4 SCC 130 : 2000 SCC (Cri) 780 ) has been distinguished and it has been finally held that a joint appeal was maintainable by deleting the name of the insurance company. We are in agreement with this view. 7. Further the question whether the appeal was maintainable, without deleting the name of the Insurance Company, was one which should have been agitated before the High Court. This question was not agitated before the High Court at all. It is an admitted position that the award was against both the owners and the Insurance Company. To that extent the owners were also aggrieved. They definitely had a right to maintain an appeal. So long as the owner was a party to the appeal the mere fact that the name of the Insurance Company was not deleted (as no such objection was taken before the High Court) is no ground for setting aside the impugned order. 8. It was next urged that the award was against the owners of both the vehicles and against the two insurance companies. It was pointed out that the other owner and the other insurance company had not filed any appeal. It was submitted that the High Court should not have interfered on the appeal of only one party. We see no substance in this submission. Merely because the other owner does not file an appeal does not mean that a party aggrieved cannot maintain his own appeal. 9. Lastly, it was submitted that the salary certificate shows that the salary of the deceased was Rs. 8632. It was submitted that the High Court was wrong in taking the salary to be Rs. 6642. It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards LIC, society charges and HBA, etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore right in so holding.
### Response:
0
### Explanation:
This question was not agitated before the High Court at all. It is an admitted position that the award was against both the owners and the Insurance Company. To that extent the owners were also aggrieved. They definitely had a right to maintain an appeal. So long as the owner was a party to the appeal the mere fact that the name of the Insurance Company was not deleted (as no such objection was taken before the High Court) is no ground for setting aside the impugned order. We see no substance in this submission. Merely because the other owner does not file an appeal does not mean that a party aggrieved cannot maintain his own appealWe are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore right in so holding.
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H. V. Kamath Vs. Ch. Nitiraj Singh
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one Shri S. K. Dixit a member of the Congress Party published a pamplet Ex.P-2 on or about February 7, 1967 refuting the false propaganda that the exemption was temporary and was granted with a view to forfeit the lands and urging the electors to vote for the Congress. On the materials on the record it is impossible to hold that the respondents committed the corrupt practice under Section 123 (1) (A). The Ordinance was passed by the Government of Madhya Pradesh. As a result of the Ordinance a large number of agriculturists got exemption from land revenue. Such an exemption does not amount to gift, offer or promise of any gratification within the meaning of Section 123 (1) (A). Nor is it possible to say that the government was the agent of the respondent. It is true that the Congress Party was then in power. But the exemption was not given by the Congress Party. It was given by the Ordinance which was passed by the Government. Nor does the announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet Ex.P-2 carry the matter any further. On the materials on the record it is not possible to say that either Shri D. P. Mishra or Shri S. K. Dixit acted as the agent of the respondent. The charge under paragraph 5 (i), (ii), (iii) and (iv) is not established. Some additional embellishments of the charge were dealt with by the learned Judge and they were not pressed before us.3. The substance of the charge as laid in paragraph 5(v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central Government employees that Shri D. P. Mishra with the consent of the respondent and as his agent announced the grant of these benefits at the meetings held on February 16, 1967 at Narsinghpur and Piparia and that the respondent thus committed the corrupt practice under Section 123 (1) (A). It appears that Class III and Class IV employees gave a notice to the government stating that they would go on strike with effect from February 13, 1967. Without their co-operation the entire election would have been at a standstill.The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967.The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of Section 123 (1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent.The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further. The charge under paragraph 5 (v) is not established.4. The charge under paragraph 6 is that the respondent or his agent distributed dummy ballot papers with the respondents name and his election symbol of "Two bullocks with yoke on" and, also the appellants name without his election symbol printed thereon, that those papers conveyed to the voters the impression that the appellant had withdrawn his candidature,that the appellant and his agents on the eve of the election told the voters that the appellant had withdrawn his candidature and that the respondent thereby committed the corrupt practice under Section 123 (4). The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellants name should not have been printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature. On this issue the appellant examined P.W.6, P.W.7, P.W.10, P.W.23, P.W.25, P.W.27, P.W.29, P.W.30, P.W.31 and P.W.32 and the respondent examined R.W.2, R.W.3, R.W.11 and R.W.13. In agreement with the learned Judge we do not accept the statement of the appellants witnesses that on the eve of the election the respondent and his agent informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election. The respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on until that date. The charge under paragraph 6 is therefore not established.5. The charge under paragraph 7 (ii) was that Chaudhury Diwan Singh, the Station House Officer at Sohagpur, and a member of the police force in the service of the government, with the consent of the respondent actively canvassed for the respondent and that the respondent thereby committed corrupt practice under Section 123 (7). To prove this charge the appellant examined P.W.3, P.W.4 and P.W.9 Chaudhury Diwan Singh and the respondent denied the charge. For the reasons given by the learned Judge, it is impossible to accept the testimony of P.W.3, P.W.4 and P.W.9. Their evidence does not ring true. P.W.3 never spoke to anybody that he was asked by Chaudhury Diwan Singh to vote for the respondent. It is not likely that Diwan Singh would approach P.W.4. It is impossible to believe that P.W.9 could overhear a conversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him. The charge under paragraph 7 (ii) is also not established.
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0[ds]The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellants name should not have been printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature. On this issue the appellant examined P.W.6, P.W.7, P.W.10, P.W.23, P.W.25, P.W.27, P.W.29, P.W.30, P.W.31 and P.W.32 and the respondent examined R.W.2, R.W.3, R.W.11 and R.W.13. In agreement with the learned Judge we do not accept the statement of the appellants witnesses that on the eve of the election the respondent and his agent informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election. The respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on until that date. The charge under paragraph 6 is therefore notthe reasons given by the learned Judge, it is impossible to accept the testimony of P.W.3, P.W.4 and P.W.9. Their evidence does not ring true. P.W.3 never spoke to anybody that he was asked by Chaudhury Diwan Singh to vote for the respondent. It is not likely that Diwan Singh would approach P.W.4. It is impossible to believe that P.W.9 could overhear a conversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him. The charge under paragraph 7 (ii) is also notappears that Class III and Class IV employees gave a notice to the government stating that they would go on strike with effect from February 13, 1967. Without their co-operation the entire election would have been at a standstill.The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967.The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of Section 123 (1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent.The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further. The charge under paragraph 5 (v) is not established.
| 0 | 1,685 | 518 |
### 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:
one Shri S. K. Dixit a member of the Congress Party published a pamplet Ex.P-2 on or about February 7, 1967 refuting the false propaganda that the exemption was temporary and was granted with a view to forfeit the lands and urging the electors to vote for the Congress. On the materials on the record it is impossible to hold that the respondents committed the corrupt practice under Section 123 (1) (A). The Ordinance was passed by the Government of Madhya Pradesh. As a result of the Ordinance a large number of agriculturists got exemption from land revenue. Such an exemption does not amount to gift, offer or promise of any gratification within the meaning of Section 123 (1) (A). Nor is it possible to say that the government was the agent of the respondent. It is true that the Congress Party was then in power. But the exemption was not given by the Congress Party. It was given by the Ordinance which was passed by the Government. Nor does the announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet Ex.P-2 carry the matter any further. On the materials on the record it is not possible to say that either Shri D. P. Mishra or Shri S. K. Dixit acted as the agent of the respondent. The charge under paragraph 5 (i), (ii), (iii) and (iv) is not established. Some additional embellishments of the charge were dealt with by the learned Judge and they were not pressed before us.3. The substance of the charge as laid in paragraph 5(v) and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central Government employees that Shri D. P. Mishra with the consent of the respondent and as his agent announced the grant of these benefits at the meetings held on February 16, 1967 at Narsinghpur and Piparia and that the respondent thus committed the corrupt practice under Section 123 (1) (A). It appears that Class III and Class IV employees gave a notice to the government stating that they would go on strike with effect from February 13, 1967. Without their co-operation the entire election would have been at a standstill.The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967.The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of Section 123 (1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent.The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further. The charge under paragraph 5 (v) is not established.4. The charge under paragraph 6 is that the respondent or his agent distributed dummy ballot papers with the respondents name and his election symbol of "Two bullocks with yoke on" and, also the appellants name without his election symbol printed thereon, that those papers conveyed to the voters the impression that the appellant had withdrawn his candidature,that the appellant and his agents on the eve of the election told the voters that the appellant had withdrawn his candidature and that the respondent thereby committed the corrupt practice under Section 123 (4). The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellants name should not have been printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature. On this issue the appellant examined P.W.6, P.W.7, P.W.10, P.W.23, P.W.25, P.W.27, P.W.29, P.W.30, P.W.31 and P.W.32 and the respondent examined R.W.2, R.W.3, R.W.11 and R.W.13. In agreement with the learned Judge we do not accept the statement of the appellants witnesses that on the eve of the election the respondent and his agent informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election. The respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on until that date. The charge under paragraph 6 is therefore not established.5. The charge under paragraph 7 (ii) was that Chaudhury Diwan Singh, the Station House Officer at Sohagpur, and a member of the police force in the service of the government, with the consent of the respondent actively canvassed for the respondent and that the respondent thereby committed corrupt practice under Section 123 (7). To prove this charge the appellant examined P.W.3, P.W.4 and P.W.9 Chaudhury Diwan Singh and the respondent denied the charge. For the reasons given by the learned Judge, it is impossible to accept the testimony of P.W.3, P.W.4 and P.W.9. Their evidence does not ring true. P.W.3 never spoke to anybody that he was asked by Chaudhury Diwan Singh to vote for the respondent. It is not likely that Diwan Singh would approach P.W.4. It is impossible to believe that P.W.9 could overhear a conversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him. The charge under paragraph 7 (ii) is also not established.
### Response:
0
### Explanation:
The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellants name should not have been printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature. On this issue the appellant examined P.W.6, P.W.7, P.W.10, P.W.23, P.W.25, P.W.27, P.W.29, P.W.30, P.W.31 and P.W.32 and the respondent examined R.W.2, R.W.3, R.W.11 and R.W.13. In agreement with the learned Judge we do not accept the statement of the appellants witnesses that on the eve of the election the respondent and his agent informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was contesting the election. The respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on until that date. The charge under paragraph 6 is therefore notthe reasons given by the learned Judge, it is impossible to accept the testimony of P.W.3, P.W.4 and P.W.9. Their evidence does not ring true. P.W.3 never spoke to anybody that he was asked by Chaudhury Diwan Singh to vote for the respondent. It is not likely that Diwan Singh would approach P.W.4. It is impossible to believe that P.W.9 could overhear a conversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him. The charge under paragraph 7 (ii) is also notappears that Class III and Class IV employees gave a notice to the government stating that they would go on strike with effect from February 13, 1967. Without their co-operation the entire election would have been at a standstill.The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967.The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of Section 123 (1) (A) nor is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent.The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does not carry the matter any further. The charge under paragraph 5 (v) is not established.
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The Govt. of A.P. and Ors Vs. P. Chandra Mouli and Anr
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avail alternative remedy. Further the High Court has considered the plea of malafides in writ petition. The Tribunal had not considered the case on merit. It had only directed the respondent No.1 to avail Statutory remedy. That being so it was certainly not open to the High Court to go into a detail examination of the alleged malafide. 9. In Union of India v. Ashok Kumar & Ors. [2005(8) SCC 760] it was inter alia noted as follows: Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a mans mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab AIR 1964 SC 72 ). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Another (AIR 1974 SC 555 ), Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003 (4) SCC 579 ). 10. As observed by this Court in Gulam Mustafa and Ors. v. The State of Maharashtra and Ors. (1976 (1) SCC 800 ) mala fide is the last refuge of a losing litigant. 11. In Midley Minerals India Ltd. v. State of Orissa [2004(12) SCC 39] it was inter alia observed as follows: We are unable to accept the contention of the learned counsel for the 4th respondent that the action of the State Government was vitiated by mala fides. It is trite that plea of mala fides has to be specific and demonstrable. Not only this, but the person against whom the mala fides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged was a contravention of the Rules and, consequently, legal mala fides and nothing beyond that. The argument of mala fides must therefore fail. Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not have enured to the benefit of the appellant company. According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, the assumption of the State Government, that the application for renewal of the quarry lease could be treated as a continuation of Jitendra Kumar Lohias application, was erroneous and unsustainable in law. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enduring to the benefit of the appellant company. If the State Government had treated them to be separate legal entities, there was no question of imposing a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie this contention of the learned counsel for the fourth respondent. It cannot be accepted. 12. Added to that a writ petition was filed on 2.3.2005 and notice was issued only to the DGP (not by name but by official designation) but the allegations of malafides were made in his personal name. The reply was filed on 7.3.2005 and the impugned order was passed on 24.3.2005. 13. It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora(1997(3) SCC 72) and Lalit Popli v. Canara Bank (2003(3) SCC 583). 14. It is not a case where the High Court should have entertained the writ petition when the Tribunal had disposed of the OA only on the ground of availability of alternative remedy. The impugned order is set aside. We make it clear that we have not expressed any opinion on the merits of the case.
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1[ds]8. The High Court ought to have noticed that this was not a case where alternative remedy could be avoided. It was necessary, as rightly observed by the Tribunal in the first occasion, for respondent No.1 to avail alternative remedy. Further the High Court has considered the plea of malafides in writ petition. The Tribunal had not considered the case on merit. It had only directed the respondent No.1 to avail Statutory remedy. That being so it was certainly not open to the High Court to go into a detail examination of the alleged malafide13. It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because ofe of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora(1997(3) SCC 72) and Lalit Popli v. Canara Bank (2003(3) SCC 583)14. It is not a case where the High Court should have entertained the writ petition when the Tribunal had disposed of the OA only on the ground of availability of alternative remedy. The impugned order is set aside. We make it clear that we have not expressed any opinion on the merits of the case.
| 1 | 2,005 | 284 |
### 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:
avail alternative remedy. Further the High Court has considered the plea of malafides in writ petition. The Tribunal had not considered the case on merit. It had only directed the respondent No.1 to avail Statutory remedy. That being so it was certainly not open to the High Court to go into a detail examination of the alleged malafide. 9. In Union of India v. Ashok Kumar & Ors. [2005(8) SCC 760] it was inter alia noted as follows: Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a mans mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab AIR 1964 SC 72 ). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Another (AIR 1974 SC 555 ), Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003 (4) SCC 579 ). 10. As observed by this Court in Gulam Mustafa and Ors. v. The State of Maharashtra and Ors. (1976 (1) SCC 800 ) mala fide is the last refuge of a losing litigant. 11. In Midley Minerals India Ltd. v. State of Orissa [2004(12) SCC 39] it was inter alia observed as follows: We are unable to accept the contention of the learned counsel for the 4th respondent that the action of the State Government was vitiated by mala fides. It is trite that plea of mala fides has to be specific and demonstrable. Not only this, but the person against whom the mala fides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged was a contravention of the Rules and, consequently, legal mala fides and nothing beyond that. The argument of mala fides must therefore fail. Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not have enured to the benefit of the appellant company. According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, the assumption of the State Government, that the application for renewal of the quarry lease could be treated as a continuation of Jitendra Kumar Lohias application, was erroneous and unsustainable in law. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enduring to the benefit of the appellant company. If the State Government had treated them to be separate legal entities, there was no question of imposing a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie this contention of the learned counsel for the fourth respondent. It cannot be accepted. 12. Added to that a writ petition was filed on 2.3.2005 and notice was issued only to the DGP (not by name but by official designation) but the allegations of malafides were made in his personal name. The reply was filed on 7.3.2005 and the impugned order was passed on 24.3.2005. 13. It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora(1997(3) SCC 72) and Lalit Popli v. Canara Bank (2003(3) SCC 583). 14. It is not a case where the High Court should have entertained the writ petition when the Tribunal had disposed of the OA only on the ground of availability of alternative remedy. The impugned order is set aside. We make it clear that we have not expressed any opinion on the merits of the case.
### Response:
1
### Explanation:
8. The High Court ought to have noticed that this was not a case where alternative remedy could be avoided. It was necessary, as rightly observed by the Tribunal in the first occasion, for respondent No.1 to avail alternative remedy. Further the High Court has considered the plea of malafides in writ petition. The Tribunal had not considered the case on merit. It had only directed the respondent No.1 to avail Statutory remedy. That being so it was certainly not open to the High Court to go into a detail examination of the alleged malafide13. It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either the enquiry, proceedings or punishment is vitiated because ofe of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora(1997(3) SCC 72) and Lalit Popli v. Canara Bank (2003(3) SCC 583)14. It is not a case where the High Court should have entertained the writ petition when the Tribunal had disposed of the OA only on the ground of availability of alternative remedy. The impugned order is set aside. We make it clear that we have not expressed any opinion on the merits of the case.
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Bhabhi Vs. Sheo Govind & Ors
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declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as ours where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate, over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made there under the question of maintenance of secrecy h as now become obsolete, because under the present system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted for the candidate. It is, however, conceded by the learned counsel for the respondent that if the counter-foils which are scaled and kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom. There are other methods also, which, when adopted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent. We have adverted to a long course of decisions of this Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in this concept.17. Lastly it was submitted by the counsel for the respondent that the learned Judge had to satisfy himself whether or not a case had been made out for allowing sample inspection and if he had exercised his discretion one way or the other, this Court should not lightly interfere with that discretion. This argument, however, is wholly untenable for the reasons we have given in holding that the order of the learned Judge is not in accordance with the law. The learned Judge has not at all applied the principles laid down by this Court in the cases referred to above. It is manifest that the Court has the undoubted power to (, rant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the application of the mind to the material facts and circumstances as discussed above.
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1[ds]These observations clearly show that the learned Judge made no attempt at all to give any finding whether he was prima facie satisfied regarding the credibility of the evidence or the materials adduced before him but ordered a sample inspection in order to test the validity of the allegations made by the respondent. It seems to us that in passing this order the learned Judge, while noticing some of the leading cases of this Court on the point which he has cited in his judgment, viz., Ram Sewak Yadav v. Hussain Kamil Kidwai &Ors. ([1964] 6 S.C.R, 238.) Dr.. Jagjit Singh v. Giani Kartar Singh and others, (A.T.R. 1966 S.C. 773.) Jitendra Bahadur Singh v. Krishan Behari &Ors;([1970] 1 S.C.R. 852.) and Sumitra Devi v. Shri Sheo Shankar Prasad Yadav &Ors.([1973] 2S.C.R.920.) has made no attempt to apply the principles laid down in those cases to the facts of the present case.Before, however, dealing with the order passed by the learned Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or f or that matter a sample inspection, can beis true that a sample inspection was allowed in that case. But, in our opinion, it was so done because of the special facts of thatthe instant case, however, the allegations are of a different kind. They relate only to the mistakes in counting and improper rejection of votes. They are not of a sweeping pattern as in the casethese circumstances, therefore, the ratio laid down in Sashi Bhushans case (supra) cannot be pressed into service for the purpose of supporting the order of the learnedon a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;(2) That before inspection is allowed, the allocations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly bethe instant case we find that the learned Judge while passing the order of sample inspection made no attempt to apply the principles mentioned above to the facts of the present case. What is more important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allegations and the material facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as ours where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate, over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made there under the question of maintenance of secrecy h as now become obsolete, because under the present system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted for the candidate. It is, however, conceded by the learned counsel for the respondent that if the counter-foils which are scaled and kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom. There are other methods also, which, when adopted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent. We have adverted to a long course of decisions of this Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in thisargument, however, is wholly untenable for the reasons we have given in holding that the order of the learned Judge is not in accordance with the law. The learned Judge has not at all applied the principles laid down by this Court in the cases referred to above. It is manifest that the Court has the undoubted power to (, rant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the application of the mind to the material facts and circumstances as discussed above.
| 1 | 5,209 | 1,762 |
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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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declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as ours where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate, over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made there under the question of maintenance of secrecy h as now become obsolete, because under the present system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted for the candidate. It is, however, conceded by the learned counsel for the respondent that if the counter-foils which are scaled and kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom. There are other methods also, which, when adopted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent. We have adverted to a long course of decisions of this Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in this concept.17. Lastly it was submitted by the counsel for the respondent that the learned Judge had to satisfy himself whether or not a case had been made out for allowing sample inspection and if he had exercised his discretion one way or the other, this Court should not lightly interfere with that discretion. This argument, however, is wholly untenable for the reasons we have given in holding that the order of the learned Judge is not in accordance with the law. The learned Judge has not at all applied the principles laid down by this Court in the cases referred to above. It is manifest that the Court has the undoubted power to (, rant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the application of the mind to the material facts and circumstances as discussed above.
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the material facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as ours where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate, over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds. The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made there under the question of maintenance of secrecy h as now become obsolete, because under the present system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted for the candidate. It is, however, conceded by the learned counsel for the respondent that if the counter-foils which are scaled and kept separately are made to tally with the ballot papers, then it can be ascertained with some amount of precision as to which voter voted for whom. There are other methods also, which, when adopted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy does not become obsolete as argued by Mr. Garg appearing for the respondent. We have adverted to a long course of decisions of this Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in thisargument, however, is wholly untenable for the reasons we have given in holding that the order of the learned Judge is not in accordance with the law. The learned Judge has not at all applied the principles laid down by this Court in the cases referred to above. It is manifest that the Court has the undoubted power to (, rant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the application of the mind to the material facts and circumstances as discussed above.
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Yograj Infras.Ltd Vs. Ssang Yong Engineering & Constrn.Co.Ltd
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provides as follows : “This agreement shall be subject to the laws of India. During the period of arbitration, the performance of this agreement shall be carried on without interruption and in accordance with its terms and provisions.” 33. As will be seen from Clause 27.1, the arbitration proceedings are to be conducted in Singapore in accordance with the SIAC Rules as in force at the time of signing of the agreement. There is, therefore, no ambiguity that the procedural law with regard to the arbitration proceedings, is the SIAC Rules. 34. Clause 27.2 makes it clear that the seat of arbitration would be Singapore. 35. What we are, therefore, left with to consider is the question as to what would be the law on the basis whereof the arbitral proceedings were to be decided. In our view, Clause 28 of the Agreement provides the answer. As indicated hereinabove, Clause 28 indicates that the governing law of the agreement would be the law of India, i.e., the Arbitration and Conciliation Act, 1996. The learned counsel for the parties have quite correctly spelt out the distinction between the “proper law” of the contract and the “curial law” to determine the law which is to govern the arbitration itself. While the proper law is the law which governs the agreement itself, in the absence of any other stipulation in the arbitration clause as to which law would apply in respect of the arbitral proceedings, it is now well-settled that it is the law governing the contract which would also be the law applicable to the Arbitral Tribunal itself. Clause 27.1 makes it quite clear that the Curial law which regulates the procedure to be adopted in conducting the arbitration would be the SIAC Rules. There is, therefore, no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings. It also happens that the parties had agreed to make Singapore the seat of arbitration. Clause 27.1 indicates that the arbitration proceedings are to be conducted in accordance with the SIAC Rules. The immediate question which, therefore, arises is whether in such a case the provisions of Section 2(2), which indicates that Part I of the above Act would apply, where the place of arbitration is in India, would be a bar to the invocation of the provisions of Sections 34 and 37 of the Act, as far as the present arbitral proceedings, which are being conducted in Singapore, are concerned.36. In Bhatia International (supra), wherein while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards, unless the parties specifically agreed to exclude the same.37. As has been pointed out by the learned Single Judge in the order impugned, the decision in the aforesaid case would not have any application to the facts of this case, inasmuch as, the parties have categorically agreed that the arbitration proceedings, if any, would be governed by the SIAC Rules as the Curial law, which included Rule 32, which categorically provides as follows : “Where the seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore) or its modification or re- enactment thereof.” 38. Having agreed to the above, it was no longer available to the appellant to contend that the “proper law” of the agreement would apply to the arbitration proceedings. The decision in Bhatia International Vs. Bulk Trading S.A. [(2002) 4 SCC 105] , which was applied subsequently in the case of Venture Global Engg. Vs. Satyam Computer Services Ltd. [(2008) 4 SCC 190] and Citation Infowares Ltd. Vs. Equinox Corporation [(2009) 7 SCC 220] , would have no application once the parties agreed by virtue of Clause 27.1 of the Agreement that the arbitration proceedings would be conducted in Singapore, i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing of the Agreement. As noticed hereinabove, Rule 32 of the SIAC Rules provides that the law of arbitration would be the International Arbitration Act, 2002, where the seat of arbitration is in Singapore. Although, it was pointed out on behalf of the appellant that in Rule 1.1 it had been stated that if any of the SIAC Rules was in conflict with the mandatory provision of the applicable law of the arbitration, from which the parties could not derogate, the said mandatory provision would prevail, such is not the case as far as the present proceedings are concerned. In the instant case, Section 2(2) of the 1996 Act, in fact, indicates that Part I would apply only in cases where the seat of arbitration is in India. This Court in Bhatia International (supra), while considering the said provision, held that in certain situations the provision of Part I of the aforesaid Act would apply even when the seat of arbitration was not in India. In the instant case, once the parties had specifically agreed that the arbitration proceedings would be conducted in accordance with the SIAC Rules, which includes Rule 32, the decision in Bhatia International and the subsequent decisions on the same lines, would no longer apply in the instant case where the parties had willingly agreed to be governed by the SIAC Rules.39. With regard to the effect of Section 42 of the Arbitration and Conciliation Act, 1996, the same, in our view was applicable at the pre-arbitral stage, when the Arbitrator had not also been appointed. Once the Arbitrator was appointed and the arbitral proceedings were commenced, the SIAC Rules became applicable shutting out the applicability of Section 42 and for that matter Part I of the 1996 Act, including the right of appeal under Section 37 thereof. 40.
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0[ds]In our view, Clause 28 of the Agreement provides the answer. As indicated hereinabove, Clause 28 indicates that the governing law of the agreement would be the law of India, i.e., the Arbitration and Conciliation Act, 1996. The learned counsel for the parties have quite correctly spelt out the distinction between theof the contract and theto determine the law which is to govern the arbitration itself. While the proper law is the law which governs the agreement itself, in the absence of any other stipulation in the arbitration clause as to which law would apply in respect of the arbitral proceedings, it is now well-settled that it is the law governing the contract which would also be the law applicable to the Arbitral Tribunal itself. Clause 27.1 makes it quite clear that the Curial law which regulates the procedure to be adopted in conducting the arbitration would be the SIAC Rules. There is, therefore, no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings. It also happens that the parties had agreed to make Singapore the seat of arbitration. Clause 27.1 indicates that the arbitration proceedings are to be conducted in accordance with the SIAC Rules. The immediate question which, therefore, arises is whether in such a case the provisions of Section 2(2), which indicates that Part I of the above Act would apply, where the place of arbitration is in India, would be a bar to the invocation of the provisions of Sections 34 and 37 of the Act, as far as the present arbitral proceedings, which are being conducted in Singapore, are concerned.36. In Bhatia International (supra), wherein while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards, unless the parties specifically agreed to exclude the same.37. As has been pointed out by the learned Single Judge in the order impugned, the decision in the aforesaid case would not have any application to the facts of this case, inasmuch as, the parties have categorically agreed that the arbitration proceedings, if any, would be governed by the SIAC Rules as the Curial law, which included Rule 32, which categorically provides as followsthe seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore) or its modification or re- enactment thereof.Having agreed to the above, it was no longer available to the appellant to contend that theof the agreement would apply to the arbitration proceedings. The decision in Bhatia International Vs. Bulk Trading S.A. [(2002) 4 SCC 105] , which was applied subsequently in the case of Venture Global Engg. Vs. Satyam Computer Services Ltd. [(2008) 4 SCC 190] and Citation Infowares Ltd. Vs. Equinox Corporation [(2009) 7 SCC 220] , would have no application once the parties agreed by virtue of Clause 27.1 of the Agreement that the arbitration proceedings would be conducted in Singapore, i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing of the Agreement. As noticed hereinabove, Rule 32 of the SIAC Rules provides that the law of arbitration would be the International Arbitration Act, 2002, where the seat of arbitration is in Singapore. Although, it was pointed out on behalf of the appellant that in Rule 1.1 it had been stated that if any of the SIAC Rules was in conflict with the mandatory provision of the applicable law of the arbitration, from which the parties could not derogate, the said mandatory provision would prevail, such is not the case as far as the present proceedings are concerned. In the instant case, Section 2(2) of the 1996 Act, in fact, indicates that Part I would apply only in cases where the seat of arbitration is in India. This Court in Bhatia International (supra), while considering the said provision, held that in certain situations the provision of Part I of the aforesaid Act would apply even when the seat of arbitration was not in India. In the instant case, once the parties had specifically agreed that the arbitration proceedings would be conducted in accordance with the SIAC Rules, which includes Rule 32, the decision in Bhatia International and the subsequent decisions on the same lines, would no longer apply in the instant case where the parties had willingly agreed to be governed by the SIAC Rules.39. With regard to the effect of Section 42 of the Arbitration and Conciliation Act, 1996, the same, in our view was applicable at the pre-arbitral stage, when the Arbitrator had not also been appointed. Once the Arbitrator was appointed and the arbitral proceedings were commenced, the SIAC Rules became applicable shutting out the applicability of Section 42 and for that matter Part I of the 1996 Act, including the right of appeal under Section 37 thereof.
| 0 | 6,744 | 957 |
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provides as follows : “This agreement shall be subject to the laws of India. During the period of arbitration, the performance of this agreement shall be carried on without interruption and in accordance with its terms and provisions.” 33. As will be seen from Clause 27.1, the arbitration proceedings are to be conducted in Singapore in accordance with the SIAC Rules as in force at the time of signing of the agreement. There is, therefore, no ambiguity that the procedural law with regard to the arbitration proceedings, is the SIAC Rules. 34. Clause 27.2 makes it clear that the seat of arbitration would be Singapore. 35. What we are, therefore, left with to consider is the question as to what would be the law on the basis whereof the arbitral proceedings were to be decided. In our view, Clause 28 of the Agreement provides the answer. As indicated hereinabove, Clause 28 indicates that the governing law of the agreement would be the law of India, i.e., the Arbitration and Conciliation Act, 1996. The learned counsel for the parties have quite correctly spelt out the distinction between the “proper law” of the contract and the “curial law” to determine the law which is to govern the arbitration itself. While the proper law is the law which governs the agreement itself, in the absence of any other stipulation in the arbitration clause as to which law would apply in respect of the arbitral proceedings, it is now well-settled that it is the law governing the contract which would also be the law applicable to the Arbitral Tribunal itself. Clause 27.1 makes it quite clear that the Curial law which regulates the procedure to be adopted in conducting the arbitration would be the SIAC Rules. There is, therefore, no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings. It also happens that the parties had agreed to make Singapore the seat of arbitration. Clause 27.1 indicates that the arbitration proceedings are to be conducted in accordance with the SIAC Rules. The immediate question which, therefore, arises is whether in such a case the provisions of Section 2(2), which indicates that Part I of the above Act would apply, where the place of arbitration is in India, would be a bar to the invocation of the provisions of Sections 34 and 37 of the Act, as far as the present arbitral proceedings, which are being conducted in Singapore, are concerned.36. In Bhatia International (supra), wherein while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards, unless the parties specifically agreed to exclude the same.37. As has been pointed out by the learned Single Judge in the order impugned, the decision in the aforesaid case would not have any application to the facts of this case, inasmuch as, the parties have categorically agreed that the arbitration proceedings, if any, would be governed by the SIAC Rules as the Curial law, which included Rule 32, which categorically provides as follows : “Where the seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore) or its modification or re- enactment thereof.” 38. Having agreed to the above, it was no longer available to the appellant to contend that the “proper law” of the agreement would apply to the arbitration proceedings. The decision in Bhatia International Vs. Bulk Trading S.A. [(2002) 4 SCC 105] , which was applied subsequently in the case of Venture Global Engg. Vs. Satyam Computer Services Ltd. [(2008) 4 SCC 190] and Citation Infowares Ltd. Vs. Equinox Corporation [(2009) 7 SCC 220] , would have no application once the parties agreed by virtue of Clause 27.1 of the Agreement that the arbitration proceedings would be conducted in Singapore, i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing of the Agreement. As noticed hereinabove, Rule 32 of the SIAC Rules provides that the law of arbitration would be the International Arbitration Act, 2002, where the seat of arbitration is in Singapore. Although, it was pointed out on behalf of the appellant that in Rule 1.1 it had been stated that if any of the SIAC Rules was in conflict with the mandatory provision of the applicable law of the arbitration, from which the parties could not derogate, the said mandatory provision would prevail, such is not the case as far as the present proceedings are concerned. In the instant case, Section 2(2) of the 1996 Act, in fact, indicates that Part I would apply only in cases where the seat of arbitration is in India. This Court in Bhatia International (supra), while considering the said provision, held that in certain situations the provision of Part I of the aforesaid Act would apply even when the seat of arbitration was not in India. In the instant case, once the parties had specifically agreed that the arbitration proceedings would be conducted in accordance with the SIAC Rules, which includes Rule 32, the decision in Bhatia International and the subsequent decisions on the same lines, would no longer apply in the instant case where the parties had willingly agreed to be governed by the SIAC Rules.39. With regard to the effect of Section 42 of the Arbitration and Conciliation Act, 1996, the same, in our view was applicable at the pre-arbitral stage, when the Arbitrator had not also been appointed. Once the Arbitrator was appointed and the arbitral proceedings were commenced, the SIAC Rules became applicable shutting out the applicability of Section 42 and for that matter Part I of the 1996 Act, including the right of appeal under Section 37 thereof. 40.
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### Explanation:
In our view, Clause 28 of the Agreement provides the answer. As indicated hereinabove, Clause 28 indicates that the governing law of the agreement would be the law of India, i.e., the Arbitration and Conciliation Act, 1996. The learned counsel for the parties have quite correctly spelt out the distinction between theof the contract and theto determine the law which is to govern the arbitration itself. While the proper law is the law which governs the agreement itself, in the absence of any other stipulation in the arbitration clause as to which law would apply in respect of the arbitral proceedings, it is now well-settled that it is the law governing the contract which would also be the law applicable to the Arbitral Tribunal itself. Clause 27.1 makes it quite clear that the Curial law which regulates the procedure to be adopted in conducting the arbitration would be the SIAC Rules. There is, therefore, no ambiguity that the SIAC Rules would be the Curial law of the arbitration proceedings. It also happens that the parties had agreed to make Singapore the seat of arbitration. Clause 27.1 indicates that the arbitration proceedings are to be conducted in accordance with the SIAC Rules. The immediate question which, therefore, arises is whether in such a case the provisions of Section 2(2), which indicates that Part I of the above Act would apply, where the place of arbitration is in India, would be a bar to the invocation of the provisions of Sections 34 and 37 of the Act, as far as the present arbitral proceedings, which are being conducted in Singapore, are concerned.36. In Bhatia International (supra), wherein while considering the applicability of Part I of the 1996 Act to arbitral proceedings where the seat of arbitration was in India, this Court was of the view that Part I of the Act did not automatically exclude all foreign arbitral proceedings or awards, unless the parties specifically agreed to exclude the same.37. As has been pointed out by the learned Single Judge in the order impugned, the decision in the aforesaid case would not have any application to the facts of this case, inasmuch as, the parties have categorically agreed that the arbitration proceedings, if any, would be governed by the SIAC Rules as the Curial law, which included Rule 32, which categorically provides as followsthe seat of arbitration is Singapore, the law of the arbitration under these Rules shall be the International Arbitration Act (Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore) or its modification or re- enactment thereof.Having agreed to the above, it was no longer available to the appellant to contend that theof the agreement would apply to the arbitration proceedings. The decision in Bhatia International Vs. Bulk Trading S.A. [(2002) 4 SCC 105] , which was applied subsequently in the case of Venture Global Engg. Vs. Satyam Computer Services Ltd. [(2008) 4 SCC 190] and Citation Infowares Ltd. Vs. Equinox Corporation [(2009) 7 SCC 220] , would have no application once the parties agreed by virtue of Clause 27.1 of the Agreement that the arbitration proceedings would be conducted in Singapore, i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration Centre Rules as in force at the time of signing of the Agreement. As noticed hereinabove, Rule 32 of the SIAC Rules provides that the law of arbitration would be the International Arbitration Act, 2002, where the seat of arbitration is in Singapore. Although, it was pointed out on behalf of the appellant that in Rule 1.1 it had been stated that if any of the SIAC Rules was in conflict with the mandatory provision of the applicable law of the arbitration, from which the parties could not derogate, the said mandatory provision would prevail, such is not the case as far as the present proceedings are concerned. In the instant case, Section 2(2) of the 1996 Act, in fact, indicates that Part I would apply only in cases where the seat of arbitration is in India. This Court in Bhatia International (supra), while considering the said provision, held that in certain situations the provision of Part I of the aforesaid Act would apply even when the seat of arbitration was not in India. In the instant case, once the parties had specifically agreed that the arbitration proceedings would be conducted in accordance with the SIAC Rules, which includes Rule 32, the decision in Bhatia International and the subsequent decisions on the same lines, would no longer apply in the instant case where the parties had willingly agreed to be governed by the SIAC Rules.39. With regard to the effect of Section 42 of the Arbitration and Conciliation Act, 1996, the same, in our view was applicable at the pre-arbitral stage, when the Arbitrator had not also been appointed. Once the Arbitrator was appointed and the arbitral proceedings were commenced, the SIAC Rules became applicable shutting out the applicability of Section 42 and for that matter Part I of the 1996 Act, including the right of appeal under Section 37 thereof.
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Commnr. Of Central Excise, Bhavnagar Vs. M/S. Saurashtra Chemicals Ltd
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the Act. (iii) Penalty should not be imposed upon the Noticee under Rule 173Q(1) of the Rules. Cause was shown. The matter was determined by the Assistant Commissioner of Central Excise, Junagadh in terms of an order dated 13.9.2001 holding that the respondent was entitled to CENVAT credit only to the extent of 50%. An appeal preferred thereagainst by the respondent aggrieved by and dissatisfied therewith before the Commissioner (Appeals), Customs and Central Excise, Rajkot was allowed by an order dated 31.12.2001. An appeal preferred by the Revenue thereagainst was dismissed by the Tribunal. An appeal by the Revenue under Section 35G of the Central Excise Act, 1944 has been dismissed by the High Court by reason of the impugned judgment dated 12.1.2006. 6. The High Court in its judgment opined that as the previous notification did not contain any restrictive clause in regard to the availability of 50% of entitlement, the Commissioner as also the Tribunal did not commit any error in applying the notification effective as on 1.3.2000. The Revenue is, thus, before us. 7. Sub-rule (1) of Rule 57AC of the Rules refers to inputs. It is not relevant for our purpose. Clauses (a) and (b) of Sub-rule (2) of Rule 57AC of the Rules governs the receipt of the capital goods in a factory. It does not restrict grant of credit in a given financial year. Whereas 50% of the credit can be taken in one financial year, the balance may be availed in the subsequent years, subject to the condition that the capital goods are still in possession and use of manufacturer of the final products in subsequent years. Clauses (a) and (b) of Sub-rule (2) of Rule 57AC of the Rules, therefore, provide for a composite scheme. We are not concerned even therewith in this appeal. Clause (c) of Sub-rule (2) of Rule 57AC of the Rules is relevant for our purpose inasmuch as in this case, we have noticed hereinbefore, that the second generator set was received on 24.10.1998, but was not installed prior to 1.4.2000. Applicability of Grasim Industries Ltd. (supra), vis-a-vis Rule 57Q(3) of the Rules has now become irrelevant. Clause (c) of Sub-rule (2) of Rule 57AC of the Rules deals with a situation with which we are concerned. By reason of the said provision, the credit sought to be given by reason of Rule 57Q(3) has not been taken taken away in its entirety, but merely postulates that if the credit had not already been availed, the same merely be obtained but limited only to the extent of 50% thereof. 8. A beneficient statute may have to be considered liberally but where a statute does not admit of more than one interpretation, literal interpretation must be resorted to. The provision allows taking of credit but the same is circumscribed by the condition as is apparent from the use of the words subject to which is limited to an amount not exceeding 50% of the duty paid on such capital goods. The term subject to in the context assumes some importance. In Ashok Leyland Ltd. v. State of Tamil Nadu & Anr., II (2004) SLT 5=(2004) 3 SCC 1 , this Court held : Subject to is an expression whereby limitation is expressed. The order is conclusive for all purposes. This Court further noticed the dictionary meaning of subject to stating : Furthermore, the expression `subject to must be given effect to. In Blacks Law Dictionary, Fifth Edition at page 1278 the expression subject to has been defined as under : Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W. 2d 289, 302. [See also S.N. Chandrashekar and Another v. State of Karnataka and Others, II (2006) SLT 336=(2006) 3 SCC 208 ]. 9. Illustration appended to Sub-rule (2) of Rule 57AC of the Rules on its plain reading governs Sub-rules 2(a) and 2(b) of Rule 57AC and not Sub-rule 2(c) thereof as it refers to a situation where the machinery has been received on April 16, 2000 and not prior thereto. Capital goods received after 1.4.2000 are governed by Clauses (a) and (b) of Sub-rule (2) of Rule 57AC whereas if received prior thereto, the same would be governed by Clause (c) thereof. 10. We, therefore, are of the opinion that the High Court was not correct in opining that CENVAT credit to the extent of 100% could be allowed in terms of Rule 57AC of the Rules. 11. Mr. Ramesh Singh, learned Counsel appearing on behalf of the respondent, however, submitted that credit had been given only to 50% of the total amount of duty paid, as would appear from the order of the Commissioner dated 31.12.2001 which is in the following terms : On going through the Sub-rule 2(c) of Rule 57AC it is very much patent that the items of capital goods which have not been installed (emphasis supplied) before 1st day of April, 2000 would be entitled to the credit for an amount not exceeding fifty per cent of the duty paid on such capital goods. I find that in the instant case also, it is uncontrovertible fact that the said Generator was not installed in the appellants factory prior to 1.4.2000, and therefore, they rightly availed of the credit of Rs. 7,80,036/- (50% of Rs. 15,60,072.28). But, what was done was that while granting relief to the extent of 50% in the relevant year, it purports to hold that the credit of balance 50% can be availed in subsequent years. The Commissioner in arriving at the said finding did not notice the distinction between Clauses (a) and (b) of Sub-rule (2) of Rule 57AC, on the one hand, and Clause (c) thereof, on the other. It also failed to notice that the illustration will have no application in the instant case. It is furthermore now a well-settled principle of law that an illustration cannot control the main provision.
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1[ds]10. We, therefore, are of the opinion that the High Court was not correct in opining that CENVAT credit to the extent of 100% could be allowed in terms of Rule 57AC of the RulesBut, what was done was that while granting relief to the extent of 50% in the relevant year, it purports to hold that the credit of balance 50% can be availed in subsequent years. The Commissioner in arriving at the said finding did not notice the distinction between Clauses (a) and (b) ofe (2) of Rule 57AC, on the one hand, and Clause (c) thereof, on the other. It also failed to notice that the illustration will have no application in the instant case. It is furthermore now ad principle of law that an illustration cannot control the main provision.
| 1 | 2,651 | 162 |
### 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:
the Act. (iii) Penalty should not be imposed upon the Noticee under Rule 173Q(1) of the Rules. Cause was shown. The matter was determined by the Assistant Commissioner of Central Excise, Junagadh in terms of an order dated 13.9.2001 holding that the respondent was entitled to CENVAT credit only to the extent of 50%. An appeal preferred thereagainst by the respondent aggrieved by and dissatisfied therewith before the Commissioner (Appeals), Customs and Central Excise, Rajkot was allowed by an order dated 31.12.2001. An appeal preferred by the Revenue thereagainst was dismissed by the Tribunal. An appeal by the Revenue under Section 35G of the Central Excise Act, 1944 has been dismissed by the High Court by reason of the impugned judgment dated 12.1.2006. 6. The High Court in its judgment opined that as the previous notification did not contain any restrictive clause in regard to the availability of 50% of entitlement, the Commissioner as also the Tribunal did not commit any error in applying the notification effective as on 1.3.2000. The Revenue is, thus, before us. 7. Sub-rule (1) of Rule 57AC of the Rules refers to inputs. It is not relevant for our purpose. Clauses (a) and (b) of Sub-rule (2) of Rule 57AC of the Rules governs the receipt of the capital goods in a factory. It does not restrict grant of credit in a given financial year. Whereas 50% of the credit can be taken in one financial year, the balance may be availed in the subsequent years, subject to the condition that the capital goods are still in possession and use of manufacturer of the final products in subsequent years. Clauses (a) and (b) of Sub-rule (2) of Rule 57AC of the Rules, therefore, provide for a composite scheme. We are not concerned even therewith in this appeal. Clause (c) of Sub-rule (2) of Rule 57AC of the Rules is relevant for our purpose inasmuch as in this case, we have noticed hereinbefore, that the second generator set was received on 24.10.1998, but was not installed prior to 1.4.2000. Applicability of Grasim Industries Ltd. (supra), vis-a-vis Rule 57Q(3) of the Rules has now become irrelevant. Clause (c) of Sub-rule (2) of Rule 57AC of the Rules deals with a situation with which we are concerned. By reason of the said provision, the credit sought to be given by reason of Rule 57Q(3) has not been taken taken away in its entirety, but merely postulates that if the credit had not already been availed, the same merely be obtained but limited only to the extent of 50% thereof. 8. A beneficient statute may have to be considered liberally but where a statute does not admit of more than one interpretation, literal interpretation must be resorted to. The provision allows taking of credit but the same is circumscribed by the condition as is apparent from the use of the words subject to which is limited to an amount not exceeding 50% of the duty paid on such capital goods. The term subject to in the context assumes some importance. In Ashok Leyland Ltd. v. State of Tamil Nadu & Anr., II (2004) SLT 5=(2004) 3 SCC 1 , this Court held : Subject to is an expression whereby limitation is expressed. The order is conclusive for all purposes. This Court further noticed the dictionary meaning of subject to stating : Furthermore, the expression `subject to must be given effect to. In Blacks Law Dictionary, Fifth Edition at page 1278 the expression subject to has been defined as under : Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W. 2d 289, 302. [See also S.N. Chandrashekar and Another v. State of Karnataka and Others, II (2006) SLT 336=(2006) 3 SCC 208 ]. 9. Illustration appended to Sub-rule (2) of Rule 57AC of the Rules on its plain reading governs Sub-rules 2(a) and 2(b) of Rule 57AC and not Sub-rule 2(c) thereof as it refers to a situation where the machinery has been received on April 16, 2000 and not prior thereto. Capital goods received after 1.4.2000 are governed by Clauses (a) and (b) of Sub-rule (2) of Rule 57AC whereas if received prior thereto, the same would be governed by Clause (c) thereof. 10. We, therefore, are of the opinion that the High Court was not correct in opining that CENVAT credit to the extent of 100% could be allowed in terms of Rule 57AC of the Rules. 11. Mr. Ramesh Singh, learned Counsel appearing on behalf of the respondent, however, submitted that credit had been given only to 50% of the total amount of duty paid, as would appear from the order of the Commissioner dated 31.12.2001 which is in the following terms : On going through the Sub-rule 2(c) of Rule 57AC it is very much patent that the items of capital goods which have not been installed (emphasis supplied) before 1st day of April, 2000 would be entitled to the credit for an amount not exceeding fifty per cent of the duty paid on such capital goods. I find that in the instant case also, it is uncontrovertible fact that the said Generator was not installed in the appellants factory prior to 1.4.2000, and therefore, they rightly availed of the credit of Rs. 7,80,036/- (50% of Rs. 15,60,072.28). But, what was done was that while granting relief to the extent of 50% in the relevant year, it purports to hold that the credit of balance 50% can be availed in subsequent years. The Commissioner in arriving at the said finding did not notice the distinction between Clauses (a) and (b) of Sub-rule (2) of Rule 57AC, on the one hand, and Clause (c) thereof, on the other. It also failed to notice that the illustration will have no application in the instant case. It is furthermore now a well-settled principle of law that an illustration cannot control the main provision.
### Response:
1
### Explanation:
10. We, therefore, are of the opinion that the High Court was not correct in opining that CENVAT credit to the extent of 100% could be allowed in terms of Rule 57AC of the RulesBut, what was done was that while granting relief to the extent of 50% in the relevant year, it purports to hold that the credit of balance 50% can be availed in subsequent years. The Commissioner in arriving at the said finding did not notice the distinction between Clauses (a) and (b) ofe (2) of Rule 57AC, on the one hand, and Clause (c) thereof, on the other. It also failed to notice that the illustration will have no application in the instant case. It is furthermore now ad principle of law that an illustration cannot control the main provision.
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East India Hotels Limited Vs. Syndicate Bank
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the plaintiff bank who is admittedly a licensee and having become a trespasser after December 31, 1986 could claim recovery of possession against the owner 8. The only prohibition under the provisions of Section 6 of the Act is not to use force and not to use any unlawful means for dispossessing a person. Both these circumstances are taking in the present case. The ratio of the decided cases is that the Court in trying a suit under Section 6 of the Act will not go into the question of title. There cannot be any dispute with this settled proposition. However, in the present case the title of the company as well as the position of the plaintiff bank that its possession was as a licensee is an admitted case 9. Our answer in these circumstances is that the plaintiff being a licensee and having become a trespasser after December 31, 1986 has no right to claim possession from the company who is admittedly the owner of the premises 10. Even otherwise to grant or not to grant relief under the Specific Relief Act lies in the judicial discretion of the Court. I am thus clearly of the view that in the facts and circumstances of the case which are admitted, the plaintiff bank is not entitled to any decree under Section 6 of the Act 11. If we look at the matter from another angle, the High Court itself has made the observations that it was most unfortunate that big corporations and public bodies (the Syndicate Bank here) who should be setting example to others, are taking advantage of delays of litigation and not abiding by their commitments, entered into with full knowledge of what the commitments were. Not only that the High Court indirectly suggested the defendant company to file a suit for possession based on title and in the view of the High Court this was the course which the defendants must adopt. The High Court further observed that while relief cannot be denied to the plaintiffs, some opportunity must be given to the defendants to obtain such orders as they may be advised to protect their rights in the property. We are told that after the decision of the High Court the company has already filed a suit for permanent injunction on the basis of title restraining the bank from obtaining possession and an application for temporary injunction has also been filed for an interim relief. That being the position the result of granting any decree in this litigation under Section 6 of the Act would not serve the ends of justice and at the same time it would unnecessarily prolong litigation between the parties which would be a waste of public money as well as the valuable time of the courts. We cannot lose sight of the fact that the plaintiff bank is an instrumentality of the State and it should honour its commitments and not indulge in futile litigation at the cost of public money 12. The cases cited at the bar do not deal with the situation and circumstances as arising in the case in hand before us. Those cases deal with tenants holding over after the expiry of the term of lease and such possession after holding over is entirely different from the case of a licensee remaining in occupation after the expiry of the term of licence. The position of such licensee is not better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such licensee under Section 6 of the Act 13. The criminal cases dealing with the question of right of private defence allowed to a trespasser dispossessed by force will not lend any assistance in deciding the present case 14. In Lallu Yeshwant Singh v. Rao Jagdish Singh [ 1968 (2) SCR 203 : 1968 AIR(SC) 620 ] (at SCR p. 208) this Court cited with approval the following observations made by Chagla, C.J. in K. K. Verma v. Union of India 1954 ILR(Bom) 950: 1954 AIR(Bom) 358 ] "Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under Section 9 and claim possession against the true owner." * In the above passage it has been clearly observed that a trespasser who has been thrown out of possession cannot go to court under Section 9 of the Specific Relief Act (now Section 6 of the Specific Relief Act, 1963) and claim possession against the true owner 15. Anther case, very near to the facts of the case in hand, decided by a bench of three Judges of this Court is D. H. Maniar v. Waman Laxman Kudav [ 1976 (4) SCC 118 : 1977 (1) SCR 403 ]. It was held in the above case that a person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person cannot be called a licensee at all 16. Thus in my view the plaintiff bank in the facts and circumstances of the present case is not entitled to any decree under Section 6 of the Act.
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1[ds]It is well settled that the plaintiff cannot be allowed to go against its own pleadings and the case as set up in the plaint. The agreement which is an admitted document also shows in unmistakable terms that it was an agreement of leave and licence. The High Court also has held that the plaintiff was a licensee in the premises and the period of licence had expired on December 31, 1986 and thereafter the company had not allowed any extension of the period of licence. It is also an admitted position in the case that the period of licence though had come to an end on December 31, 1986 but the company never took law into its own hands much less used any force in order to dispossess the bank from the premises. The company in a lawful manner served a legal notice asking the bank to vacate the premises on or before December 31, 1986. The company acted in a lawful manner and the bank though bound to hand over possession of the premises to the company before December 31, 1986, continued to remain in unlawful possession as aclearly goes to show that the bank was not doing any business in the premises on or after April 12, 1990 and in this manner had to vacate the suit premises on account of fire as the premises were no longer fit for continuing any business by the bank. Thereafter, according to the plaintiffs a new lock was fixed by the company on the main entrance in July 1990 and thereafter did not permit the officials of the bank to enter the premises. The plaintiff bank wrote a letter to the company on May 26, 1990. The aforesaid letter is reproduced inthe present case in our view the plaintiff has not been dispossessed by using any force. Admittedly the bank is a licensee and the period of such licence came to an end on December 31, 1986 and thereafter its possession was that of a trespasser. On account of fire having broken out on April 12, 1990 the bank had to stop its business and in fact it has started its business at some other place. In case the intention of the company would have been to dispossess the bank by force, it could have done so soon after the expiry of the period of licence, but admittedly nothing was done for more than three years till the fire broke out on April 12, 1990. The question now is whether the plaintiff bank who is admittedly a licensee and having become a trespasser after December 31, 1986 could claim recovery of possession against thecannot be any dispute with this settled proposition. However, in the present case the title of the company as well as the position of the plaintiff bank that its possession was as a licensee is an admittedEven otherwise to grant or not to grant relief under the Specific Relief Act lies in the judicial discretion of the Court. I am thus clearly of the view that in the facts and circumstances of the case which are admitted, the plaintiff bank is not entitled to any decree under Section 6 of theare told that after the decision of the High Court the company has already filed a suit for permanent injunction on the basis of title restraining the bank from obtaining possession and an application for temporary injunction has also been filed for an interim relief. That being the position the result of granting any decree in this litigation under Section 6 of the Act would not serve the ends of justice and at the same time it would unnecessarily prolong litigation between the parties which would be a waste of public money as well as the valuable time of the courts. We cannot lose sight of the fact that the plaintiff bank is an instrumentality of the State and it should honour its commitments and not indulge in futile litigation at the cost of publicposition of such licensee is not better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such licensee under Section 6 of theThus in my view the plaintiff bank in the facts and circumstances of the present case is not entitled to any decree under Section 6 of the Act.
| 1 | 4,244 | 798 |
### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the plaintiff bank who is admittedly a licensee and having become a trespasser after December 31, 1986 could claim recovery of possession against the owner 8. The only prohibition under the provisions of Section 6 of the Act is not to use force and not to use any unlawful means for dispossessing a person. Both these circumstances are taking in the present case. The ratio of the decided cases is that the Court in trying a suit under Section 6 of the Act will not go into the question of title. There cannot be any dispute with this settled proposition. However, in the present case the title of the company as well as the position of the plaintiff bank that its possession was as a licensee is an admitted case 9. Our answer in these circumstances is that the plaintiff being a licensee and having become a trespasser after December 31, 1986 has no right to claim possession from the company who is admittedly the owner of the premises 10. Even otherwise to grant or not to grant relief under the Specific Relief Act lies in the judicial discretion of the Court. I am thus clearly of the view that in the facts and circumstances of the case which are admitted, the plaintiff bank is not entitled to any decree under Section 6 of the Act 11. If we look at the matter from another angle, the High Court itself has made the observations that it was most unfortunate that big corporations and public bodies (the Syndicate Bank here) who should be setting example to others, are taking advantage of delays of litigation and not abiding by their commitments, entered into with full knowledge of what the commitments were. Not only that the High Court indirectly suggested the defendant company to file a suit for possession based on title and in the view of the High Court this was the course which the defendants must adopt. The High Court further observed that while relief cannot be denied to the plaintiffs, some opportunity must be given to the defendants to obtain such orders as they may be advised to protect their rights in the property. We are told that after the decision of the High Court the company has already filed a suit for permanent injunction on the basis of title restraining the bank from obtaining possession and an application for temporary injunction has also been filed for an interim relief. That being the position the result of granting any decree in this litigation under Section 6 of the Act would not serve the ends of justice and at the same time it would unnecessarily prolong litigation between the parties which would be a waste of public money as well as the valuable time of the courts. We cannot lose sight of the fact that the plaintiff bank is an instrumentality of the State and it should honour its commitments and not indulge in futile litigation at the cost of public money 12. The cases cited at the bar do not deal with the situation and circumstances as arising in the case in hand before us. Those cases deal with tenants holding over after the expiry of the term of lease and such possession after holding over is entirely different from the case of a licensee remaining in occupation after the expiry of the term of licence. The position of such licensee is not better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such licensee under Section 6 of the Act 13. The criminal cases dealing with the question of right of private defence allowed to a trespasser dispossessed by force will not lend any assistance in deciding the present case 14. In Lallu Yeshwant Singh v. Rao Jagdish Singh [ 1968 (2) SCR 203 : 1968 AIR(SC) 620 ] (at SCR p. 208) this Court cited with approval the following observations made by Chagla, C.J. in K. K. Verma v. Union of India 1954 ILR(Bom) 950: 1954 AIR(Bom) 358 ] "Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under Section 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under Section 9 and claim possession against the true owner." * In the above passage it has been clearly observed that a trespasser who has been thrown out of possession cannot go to court under Section 9 of the Specific Relief Act (now Section 6 of the Specific Relief Act, 1963) and claim possession against the true owner 15. Anther case, very near to the facts of the case in hand, decided by a bench of three Judges of this Court is D. H. Maniar v. Waman Laxman Kudav [ 1976 (4) SCC 118 : 1977 (1) SCR 403 ]. It was held in the above case that a person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person cannot be called a licensee at all 16. Thus in my view the plaintiff bank in the facts and circumstances of the present case is not entitled to any decree under Section 6 of the Act.
### Response:
1
### Explanation:
It is well settled that the plaintiff cannot be allowed to go against its own pleadings and the case as set up in the plaint. The agreement which is an admitted document also shows in unmistakable terms that it was an agreement of leave and licence. The High Court also has held that the plaintiff was a licensee in the premises and the period of licence had expired on December 31, 1986 and thereafter the company had not allowed any extension of the period of licence. It is also an admitted position in the case that the period of licence though had come to an end on December 31, 1986 but the company never took law into its own hands much less used any force in order to dispossess the bank from the premises. The company in a lawful manner served a legal notice asking the bank to vacate the premises on or before December 31, 1986. The company acted in a lawful manner and the bank though bound to hand over possession of the premises to the company before December 31, 1986, continued to remain in unlawful possession as aclearly goes to show that the bank was not doing any business in the premises on or after April 12, 1990 and in this manner had to vacate the suit premises on account of fire as the premises were no longer fit for continuing any business by the bank. Thereafter, according to the plaintiffs a new lock was fixed by the company on the main entrance in July 1990 and thereafter did not permit the officials of the bank to enter the premises. The plaintiff bank wrote a letter to the company on May 26, 1990. The aforesaid letter is reproduced inthe present case in our view the plaintiff has not been dispossessed by using any force. Admittedly the bank is a licensee and the period of such licence came to an end on December 31, 1986 and thereafter its possession was that of a trespasser. On account of fire having broken out on April 12, 1990 the bank had to stop its business and in fact it has started its business at some other place. In case the intention of the company would have been to dispossess the bank by force, it could have done so soon after the expiry of the period of licence, but admittedly nothing was done for more than three years till the fire broke out on April 12, 1990. The question now is whether the plaintiff bank who is admittedly a licensee and having become a trespasser after December 31, 1986 could claim recovery of possession against thecannot be any dispute with this settled proposition. However, in the present case the title of the company as well as the position of the plaintiff bank that its possession was as a licensee is an admittedEven otherwise to grant or not to grant relief under the Specific Relief Act lies in the judicial discretion of the Court. I am thus clearly of the view that in the facts and circumstances of the case which are admitted, the plaintiff bank is not entitled to any decree under Section 6 of theare told that after the decision of the High Court the company has already filed a suit for permanent injunction on the basis of title restraining the bank from obtaining possession and an application for temporary injunction has also been filed for an interim relief. That being the position the result of granting any decree in this litigation under Section 6 of the Act would not serve the ends of justice and at the same time it would unnecessarily prolong litigation between the parties which would be a waste of public money as well as the valuable time of the courts. We cannot lose sight of the fact that the plaintiff bank is an instrumentality of the State and it should honour its commitments and not indulge in futile litigation at the cost of publicposition of such licensee is not better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such licensee under Section 6 of theThus in my view the plaintiff bank in the facts and circumstances of the present case is not entitled to any decree under Section 6 of the Act.
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M/s Hindustan Petroleum Corpn. Ltd. & Others Vs. M/s. Super Highway Services & Another
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same could have been sent by registered post with acknowledgement due and the Marker Test could have been postponed for some time for the said purpose as there was no immediate threat to the T/T Samples or the samples at site becoming contaminated in any way. It was pointed out that even the ordinary norms relating to service of notice were not followed in the instant case and in that regard reference was made to a similar notice issued to another retail dealer, made Annexure A-4 to the additional affidavit on behalf of the Respondent No.1. It was pointed out that the said letter dated 23rd December, 2008, not only had a reference number, but was printed and sent to the dealer concerned, whereas in the instant case the notice alleged to have been given to the Respondent No.1 by Shri D.K. Dash was in hand written script. In addition, the same did not have any reference number and though dated 28th May, 2008, was alleged to have been tendered on 29th May, 2008, the very date on which the Marker Test was to be held in the Barauni Terminal at 3.00 p.m. Mr. Bhatt urged that the said notice was obviously manufactured for the purpose of termination of the dealership of the Respondent No.1. 16. Having carefully considered the submissions made on behalf of the respective parties and also having considered the various decisions referred to by learned counsel, we are of the view that the case made out on behalf of the Respondent No.1 is more probable. Although, the transporters representative was present at the terminal at the stipulated time on 29th May, 2008, that by itself cannot give rise to a presumption that service had been effected also on the Respondent No.1, in the absence of any proof in that regard. Except for the endorsement on the hand-written notice said to have been given by Mr. Dash, there is nothing else on record to even suggest that notice had been sent to the Respondent No.1 and that the same had been refused. It is also rather difficult to accept that in respect of a test to be conducted on 29th May, 2008, at 3.00 p.m., an attempt was made to serve the said notice on the representative of the Respondent No.1 on the date of the proposed test itself. Although, the notice is dated 28th May, 2008, the endorsement alleged to have been made by the representative of the Respondent No.1 is dated 29th May, 2008, and we would be justified in assuming that the Respondent No.1 could not have arranged for being represented at the laboratory in the Barauni Terminal of the petitioner Corporation on such short notice. Nothing has been shown by the petitioner to disprove the allegation made on behalf of the Respondent No.1 that the notice alleged to have been tendered to the representative of the Respondent No.1 was not in the manner and the form in which such notice is required to be given to a dealer. It is obvious that the same had been made out in haste to indicate that service had been attempted on the Respondent No.1. 17. The cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. In order to justify the action taken to terminate such an agreement, the concerned authority has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. The non-service of notice to the aggrieved person before termination of his dealership agreement also offends the well-established principle that no person should be condemned unheard. It was the duty of the petitioner to ensure that the Respondent No.1 was given a hearing or at least serious attempts were made to serve him with notice of the proceedings before terminating his agreement. 18. In the instant case, we are inclined to agree with Mr. Bhatts submissions that the High Court did not commit any error in allowing the writ petition filed by the Respondent No.1 herein, upon holding that notice of the Laboratory Test to be conducted at the Barauni Terminal had not been served upon the Respondent No.1, which has caused severe prejudice to the said respondent since its dealership agreement was terminated on the basis of the findings of such Test. Admittedly the dealership agreement was terminated on the ground that the product supplied by the petitioner corporation was contaminated by the respondent. Such contamination was sought to be proved by testing the T.T. retention sample in the laboratory at Barauni Terminal. The Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. In the present case, there is no admissible evidence to prove service of notice on the respondent or refusal of notice by the respondent. Further, the notice dated 28.05.2008 which was allegedly refused by respondent, did not give him adequate time to arrange for the presence of himself or his representative during the test to be conducted at 3.00 PM on 29.05.2008. It is also to be noted that the endorsement regarding the alleged refusal is dated 29.05.2008 itself. Thus, the termination of the dealership agreement of the respondent was arbitrary, illegal and in violation of the principles of natural justice.
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0[ds]18. In the instant case, we are inclined to agree with Mr. Bhatts submissions that the High Court did not commit any error in allowing the writ petition filed by the Respondent No.1 herein, upon holding that notice of the Laboratory Test to be conducted at the Barauni Terminal had not been served upon the Respondent No.1, which has caused severe prejudice to the said respondent since its dealership agreement was terminated on the basis of the findings of such Test. Admittedly the dealership agreement was terminated on the ground that the product supplied by the petitioner corporation was contaminated by the respondent. Such contamination was sought to be proved by testing the T.T. retention sample in the laboratory at Barauni Terminal. The Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. In the present case, there is no admissible evidence to prove service of notice on the respondent or refusal of notice by the respondent. Further, the notice dated 28.05.2008 which was allegedly refused by respondent, did not give him adequate time to arrange for the presence of himself or his representative during the test to be conducted at 3.00 PM on 29.05.2008. It is also to be noted that the endorsement regarding the alleged refusal is dated 29.05.2008 itself. Thus, the termination of the dealership agreement of the respondent was arbitrary, illegal and in violation of the principles of natural justice
| 0 | 4,191 | 388 |
### 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:
same could have been sent by registered post with acknowledgement due and the Marker Test could have been postponed for some time for the said purpose as there was no immediate threat to the T/T Samples or the samples at site becoming contaminated in any way. It was pointed out that even the ordinary norms relating to service of notice were not followed in the instant case and in that regard reference was made to a similar notice issued to another retail dealer, made Annexure A-4 to the additional affidavit on behalf of the Respondent No.1. It was pointed out that the said letter dated 23rd December, 2008, not only had a reference number, but was printed and sent to the dealer concerned, whereas in the instant case the notice alleged to have been given to the Respondent No.1 by Shri D.K. Dash was in hand written script. In addition, the same did not have any reference number and though dated 28th May, 2008, was alleged to have been tendered on 29th May, 2008, the very date on which the Marker Test was to be held in the Barauni Terminal at 3.00 p.m. Mr. Bhatt urged that the said notice was obviously manufactured for the purpose of termination of the dealership of the Respondent No.1. 16. Having carefully considered the submissions made on behalf of the respective parties and also having considered the various decisions referred to by learned counsel, we are of the view that the case made out on behalf of the Respondent No.1 is more probable. Although, the transporters representative was present at the terminal at the stipulated time on 29th May, 2008, that by itself cannot give rise to a presumption that service had been effected also on the Respondent No.1, in the absence of any proof in that regard. Except for the endorsement on the hand-written notice said to have been given by Mr. Dash, there is nothing else on record to even suggest that notice had been sent to the Respondent No.1 and that the same had been refused. It is also rather difficult to accept that in respect of a test to be conducted on 29th May, 2008, at 3.00 p.m., an attempt was made to serve the said notice on the representative of the Respondent No.1 on the date of the proposed test itself. Although, the notice is dated 28th May, 2008, the endorsement alleged to have been made by the representative of the Respondent No.1 is dated 29th May, 2008, and we would be justified in assuming that the Respondent No.1 could not have arranged for being represented at the laboratory in the Barauni Terminal of the petitioner Corporation on such short notice. Nothing has been shown by the petitioner to disprove the allegation made on behalf of the Respondent No.1 that the notice alleged to have been tendered to the representative of the Respondent No.1 was not in the manner and the form in which such notice is required to be given to a dealer. It is obvious that the same had been made out in haste to indicate that service had been attempted on the Respondent No.1. 17. The cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. In order to justify the action taken to terminate such an agreement, the concerned authority has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. The non-service of notice to the aggrieved person before termination of his dealership agreement also offends the well-established principle that no person should be condemned unheard. It was the duty of the petitioner to ensure that the Respondent No.1 was given a hearing or at least serious attempts were made to serve him with notice of the proceedings before terminating his agreement. 18. In the instant case, we are inclined to agree with Mr. Bhatts submissions that the High Court did not commit any error in allowing the writ petition filed by the Respondent No.1 herein, upon holding that notice of the Laboratory Test to be conducted at the Barauni Terminal had not been served upon the Respondent No.1, which has caused severe prejudice to the said respondent since its dealership agreement was terminated on the basis of the findings of such Test. Admittedly the dealership agreement was terminated on the ground that the product supplied by the petitioner corporation was contaminated by the respondent. Such contamination was sought to be proved by testing the T.T. retention sample in the laboratory at Barauni Terminal. The Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. In the present case, there is no admissible evidence to prove service of notice on the respondent or refusal of notice by the respondent. Further, the notice dated 28.05.2008 which was allegedly refused by respondent, did not give him adequate time to arrange for the presence of himself or his representative during the test to be conducted at 3.00 PM on 29.05.2008. It is also to be noted that the endorsement regarding the alleged refusal is dated 29.05.2008 itself. Thus, the termination of the dealership agreement of the respondent was arbitrary, illegal and in violation of the principles of natural justice.
### Response:
0
### Explanation:
18. In the instant case, we are inclined to agree with Mr. Bhatts submissions that the High Court did not commit any error in allowing the writ petition filed by the Respondent No.1 herein, upon holding that notice of the Laboratory Test to be conducted at the Barauni Terminal had not been served upon the Respondent No.1, which has caused severe prejudice to the said respondent since its dealership agreement was terminated on the basis of the findings of such Test. Admittedly the dealership agreement was terminated on the ground that the product supplied by the petitioner corporation was contaminated by the respondent. Such contamination was sought to be proved by testing the T.T. retention sample in the laboratory at Barauni Terminal. The Guidelines being followed by the Corporation require that the dealer should be given prior notice regarding the test so that he or his representative also can be present when the test is conducted. The said requirement is in accordance with the principles of natural justice and the need for fairness in the matter of terminating the dealership agreement and it cannot be made an empty formality. Notice should be served on the dealer sufficiently early so as to give him adequate time and opportunity to arrange for his presence during the test and there should be admissible evidence for such service of notice on the dealer. Strict adherence to the above requirement is essential, in view of the possibility of manipulation in the conduct of the test, if it is conducted behind the back of the dealer. In the present case, there is no admissible evidence to prove service of notice on the respondent or refusal of notice by the respondent. Further, the notice dated 28.05.2008 which was allegedly refused by respondent, did not give him adequate time to arrange for the presence of himself or his representative during the test to be conducted at 3.00 PM on 29.05.2008. It is also to be noted that the endorsement regarding the alleged refusal is dated 29.05.2008 itself. Thus, the termination of the dealership agreement of the respondent was arbitrary, illegal and in violation of the principles of natural justice
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Cooper Engineering Limited Vs. D.M. Aney & Others
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the various clauses in the two settlements that they related to payment of wages including dearness allowance, which had the character of an interim relief, as awarded by the Wage Board. It is the further view of the High Court that when the final recommendations of the Wage Board are made, the workmen were at liberty to raise demands regarding wages and dearness allowance legally payable to them. The agreement, if at all, was not to raise any dispute pending the final recommendations of the Wage Board.12. We have ourselves gone rough the various clauses in the two statements and we are in entire agreement with the view of the High Court. As there has been a very elaborate discussion by the High Court and as we entirely agree with its reasoning, we do not propose to cover the ground over again. As we are now on the limited question regarding the competency of the State Government to make the reference, it must be held that the State Governments view that the settlements related only to the interim relief is a possible one in the circumstances of this case. Hence, we cannot say that the reference made by the State Government was incompetent.13. We express no opinion on the question regarding the right of the third respondent to terminate the two agreements in question because there is a controversy as to whether, at the relevant date, the third respondent represented the majority of the workmen bound by these agreements The claim of the third respondent is that it represented the majority of such workmen. The Tribunal, when it adjudicates the dispute, will have to investigate the question when considering the points covered by the settlements as well as the question whether those settlements have been properly terminated, when the reference was made by the State Government.14. In this view, we are not referring on the relevant provisions of the Act; nor do we deal with the decisions cited on both sides.15. The further contention that is taken by Mr. Shroff is based upon the decisions of this Court in Union of India v. M/s. Anglo Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) and Century Spg. and Mfg. Co. Ltd. v. The Ulhasnagar Municipal Council, (1973) 3 SCR 854 = (AIR 1971 SC 1021 ). According to Mr. Shroff, the Minister for Labour of Maharashtra, at a meeting of the employers and representative of the employees, held on September 9, 1968, stated:"The Govt. of Maharashtra would not refer disputes on wages and dearness allowance to adjudication in the case of engineering establishments covered by the Wage Board, if the concerned employer agreed to implement the recommendations, interim as well as final, of the Central Wage Board, as accepted by the Government of India."On the, basis of this statement of the Minister, the appellant implemented the interim relief and also assured the authorities concerned that it will implement the final recommendations of the Wage Board, as the appellant has acted on the representations made by the Minister to its prejudice, the reference of the dispute for adjudication was not justified. Mr. Shroff referred us to the letter dated September 24, 1965, written to the concerned Minister for Labour by the Indian Engineering Association (Western Region] and Engineering Association of India (Western Region) Bombay. This letter refers to the statement made by the Minister on September 9, 1965. He also invited our attention to the letter dated July 2, 1968, written by the appellant to the Deputy Commissioner of Labour, Poona. In that letter, the appellant had stated that it had agreed with its workers to implement the interim relief granted by the wage Board. The appellant gave an assurance to the Deputy Commissioner of Labour, Bombay, that it will implement the recommendations of the Wage Board. for engineering industries, as accepted by the Central Government.16. The Act gives power to the State Government to refer a dispute for adjudication. As to how far, by a Minister making a statement the Government can be relieved of its obligation under the Act, is a debatable question. It is, however, not necessary for us to go into this aspect in this particular case. None of the settlements entered into by the appellant with its workmen gives any indication that the said settlements were being made in view of the statement made by the Minister. On the other hand, we have already pointed out that every one of the settlements entered is preceded by a demand made by the union concerned. It is really in the interest of industrial peace that the appellant appears to have entered into those settlements. Therefore, the decisions relied on by Mr. Shroff do not apply in this case.17. Lastly Mr. Shroff contended that the State Government declined to make a reference in the case of the Indian Hume Pipe Co. Ltd. specifically on the ground that the said company had implemented the interim recommendations of the Wage Board and that it was also prepared to implement its final recommendations. But in the case of the appellant, the State Government made the reference and as such there has been discrimination.18. It is no doubt true that in the letter dated June 8, 1968, sent by the State Government to Indian Hume Pipe Co. Ltd., the Government states that it is not making a reference regarding the dispute between the said company and its workmen. The reason for not making the reference is also stated to be the implementation by the company of the interim recommendations of the Wage Board and its preparedness to implement the final recommendations also.19. We find, however, from the judgment of the High Court that this question of, discrimination with special reference to the Indian Hume Pipe Company Ltd. has not been argued by the appellant. The inference under such circumstances is that such a contention was not pressed before the High Court. Hence we decline to go into that question.
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0[ds]11. Though there has been a very elaborate consideration by the High Court regarding the competency of the third respondent to terminate the settlements, its ultimate decision is rested on a construction of the two settlements dated November 1, 1966 and May 13, 1967. According to the High Court, it is abundantly clear on a reading of the various clauses in the two settlements that they related to payment of wages including dearness allowance, which had the character of an interim relief, as awarded by the Wage Board. It is the further view of the High Court that when the final recommendations of the Wage Board are made, the workmen were at liberty to raise demands regarding wages and dearness allowance legally payable to them. The agreement, if at all, was not to raise any dispute pending the final recommendations of the Wage Board.12. We have ourselves gone rough the various clauses in the two statements and we are in entire agreement with the view of the High Court. As there has been a very elaborate discussion by the High Court and as we entirely agree with its reasoning, we do not propose to cover the ground over again. As we are now on the limited question regarding the competency of the State Government to make the reference, it must be held that the State Governments view that the settlements related only to the interim relief is a possible one in the circumstances of this case. Hence, we cannot say that the reference made by the State Government was incompetent.13. We express no opinion on the question regarding the right of the third respondent to terminate the two agreements in question because there is a controversy as to whether, at the relevant date, the third respondent represented the majority of the workmen bound by these agreements The claim of the third respondent is that it represented the majority of such workmen. The Tribunal, when it adjudicates the dispute, will have to investigate the question when considering the points covered by the settlements as well as the question whether those settlements have been properly terminated, when the reference was made by the State Government.It is no doubt true that in the letter dated June 8, 1968, sent by the State Government to Indian Hume Pipe Co. Ltd., the Government states that it is not making a reference regarding the dispute between the said company and its workmen. The reason for not making the reference is also stated to be the implementation by the company of the interim recommendations of the Wage Board and its preparedness to implement the final recommendations also.19. We find, however, from the judgment of the High Court that this question of, discrimination with special reference to the Indian Hume Pipe Company Ltd. has not been argued by the appellant. The inference under such circumstances is that such a contention was not pressed before the High Court. Hence we decline to go into that question.
| 0 | 2,965 | 540 |
### 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:
the various clauses in the two settlements that they related to payment of wages including dearness allowance, which had the character of an interim relief, as awarded by the Wage Board. It is the further view of the High Court that when the final recommendations of the Wage Board are made, the workmen were at liberty to raise demands regarding wages and dearness allowance legally payable to them. The agreement, if at all, was not to raise any dispute pending the final recommendations of the Wage Board.12. We have ourselves gone rough the various clauses in the two statements and we are in entire agreement with the view of the High Court. As there has been a very elaborate discussion by the High Court and as we entirely agree with its reasoning, we do not propose to cover the ground over again. As we are now on the limited question regarding the competency of the State Government to make the reference, it must be held that the State Governments view that the settlements related only to the interim relief is a possible one in the circumstances of this case. Hence, we cannot say that the reference made by the State Government was incompetent.13. We express no opinion on the question regarding the right of the third respondent to terminate the two agreements in question because there is a controversy as to whether, at the relevant date, the third respondent represented the majority of the workmen bound by these agreements The claim of the third respondent is that it represented the majority of such workmen. The Tribunal, when it adjudicates the dispute, will have to investigate the question when considering the points covered by the settlements as well as the question whether those settlements have been properly terminated, when the reference was made by the State Government.14. In this view, we are not referring on the relevant provisions of the Act; nor do we deal with the decisions cited on both sides.15. The further contention that is taken by Mr. Shroff is based upon the decisions of this Court in Union of India v. M/s. Anglo Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ) and Century Spg. and Mfg. Co. Ltd. v. The Ulhasnagar Municipal Council, (1973) 3 SCR 854 = (AIR 1971 SC 1021 ). According to Mr. Shroff, the Minister for Labour of Maharashtra, at a meeting of the employers and representative of the employees, held on September 9, 1968, stated:"The Govt. of Maharashtra would not refer disputes on wages and dearness allowance to adjudication in the case of engineering establishments covered by the Wage Board, if the concerned employer agreed to implement the recommendations, interim as well as final, of the Central Wage Board, as accepted by the Government of India."On the, basis of this statement of the Minister, the appellant implemented the interim relief and also assured the authorities concerned that it will implement the final recommendations of the Wage Board, as the appellant has acted on the representations made by the Minister to its prejudice, the reference of the dispute for adjudication was not justified. Mr. Shroff referred us to the letter dated September 24, 1965, written to the concerned Minister for Labour by the Indian Engineering Association (Western Region] and Engineering Association of India (Western Region) Bombay. This letter refers to the statement made by the Minister on September 9, 1965. He also invited our attention to the letter dated July 2, 1968, written by the appellant to the Deputy Commissioner of Labour, Poona. In that letter, the appellant had stated that it had agreed with its workers to implement the interim relief granted by the wage Board. The appellant gave an assurance to the Deputy Commissioner of Labour, Bombay, that it will implement the recommendations of the Wage Board. for engineering industries, as accepted by the Central Government.16. The Act gives power to the State Government to refer a dispute for adjudication. As to how far, by a Minister making a statement the Government can be relieved of its obligation under the Act, is a debatable question. It is, however, not necessary for us to go into this aspect in this particular case. None of the settlements entered into by the appellant with its workmen gives any indication that the said settlements were being made in view of the statement made by the Minister. On the other hand, we have already pointed out that every one of the settlements entered is preceded by a demand made by the union concerned. It is really in the interest of industrial peace that the appellant appears to have entered into those settlements. Therefore, the decisions relied on by Mr. Shroff do not apply in this case.17. Lastly Mr. Shroff contended that the State Government declined to make a reference in the case of the Indian Hume Pipe Co. Ltd. specifically on the ground that the said company had implemented the interim recommendations of the Wage Board and that it was also prepared to implement its final recommendations. But in the case of the appellant, the State Government made the reference and as such there has been discrimination.18. It is no doubt true that in the letter dated June 8, 1968, sent by the State Government to Indian Hume Pipe Co. Ltd., the Government states that it is not making a reference regarding the dispute between the said company and its workmen. The reason for not making the reference is also stated to be the implementation by the company of the interim recommendations of the Wage Board and its preparedness to implement the final recommendations also.19. We find, however, from the judgment of the High Court that this question of, discrimination with special reference to the Indian Hume Pipe Company Ltd. has not been argued by the appellant. The inference under such circumstances is that such a contention was not pressed before the High Court. Hence we decline to go into that question.
### Response:
0
### Explanation:
11. Though there has been a very elaborate consideration by the High Court regarding the competency of the third respondent to terminate the settlements, its ultimate decision is rested on a construction of the two settlements dated November 1, 1966 and May 13, 1967. According to the High Court, it is abundantly clear on a reading of the various clauses in the two settlements that they related to payment of wages including dearness allowance, which had the character of an interim relief, as awarded by the Wage Board. It is the further view of the High Court that when the final recommendations of the Wage Board are made, the workmen were at liberty to raise demands regarding wages and dearness allowance legally payable to them. The agreement, if at all, was not to raise any dispute pending the final recommendations of the Wage Board.12. We have ourselves gone rough the various clauses in the two statements and we are in entire agreement with the view of the High Court. As there has been a very elaborate discussion by the High Court and as we entirely agree with its reasoning, we do not propose to cover the ground over again. As we are now on the limited question regarding the competency of the State Government to make the reference, it must be held that the State Governments view that the settlements related only to the interim relief is a possible one in the circumstances of this case. Hence, we cannot say that the reference made by the State Government was incompetent.13. We express no opinion on the question regarding the right of the third respondent to terminate the two agreements in question because there is a controversy as to whether, at the relevant date, the third respondent represented the majority of the workmen bound by these agreements The claim of the third respondent is that it represented the majority of such workmen. The Tribunal, when it adjudicates the dispute, will have to investigate the question when considering the points covered by the settlements as well as the question whether those settlements have been properly terminated, when the reference was made by the State Government.It is no doubt true that in the letter dated June 8, 1968, sent by the State Government to Indian Hume Pipe Co. Ltd., the Government states that it is not making a reference regarding the dispute between the said company and its workmen. The reason for not making the reference is also stated to be the implementation by the company of the interim recommendations of the Wage Board and its preparedness to implement the final recommendations also.19. We find, however, from the judgment of the High Court that this question of, discrimination with special reference to the Indian Hume Pipe Company Ltd. has not been argued by the appellant. The inference under such circumstances is that such a contention was not pressed before the High Court. Hence we decline to go into that question.
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Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram And Others
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law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters has adopted and acted. upon some particular law, or by having himself observed some family usage or custom; and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which-he has adopted, or the rules which he has observed. "Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been no rigid adherence to them among his followers in later years. They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties. We need not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars.24. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra ( R.W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste on conversion.25. On this evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the converts caste status, at any rate, , so far as the householder section of the Panth is concerned.26. So much for the caste consciousness on both sides. Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages. His first wife was never converted. His second wife was converted after her marriage. The witnesses say he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste. No one on the other side denies this. As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava. If he was not, then he must have continued a Mahar even on their view.The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste. In 1936 he contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly, he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination. The Returning Officer described that as a "cleverly, worded document. " We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham(9 M.I.A. 199. 199.), we hold that despite his conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us.
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0[ds]We do not intend to analyse these letters in detail. here. It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales. This, in our opinion, constituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the commission on all orders placed and accepted in -accordance with the arrangement ; and in fact the Canteen Stores did obtain a sum of Rs. 7, 500 in satisfaction of a claim of this kind. This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and that it was a continuing one. In our opinion, it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive. But except for this, the; letters merely set out the terms on which the parties were ready to do business with each other if and when orders were placed and executed. As soon as an order was placed and accepted a contract arose. It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also, each separate order and acceptance constituted a different and distinctobvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh consignments for sale on the " pay as we sell " basis. We say "obvious" because the manufacturers could use the stale tobacco by re-curing and blending it, or could use it for other purposes provided it was not too far gone. The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka & Companys bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months. Moolji Sicka & Company were then to replace them with fresh stocks which would be paid for when sold. This was agreed to in the main but the point at which they were at issue was the six months. Mooli Sicka & -Company proposed three months while the Canteen Stores wanted six months. We think the argument used in the letter of 31st July, 1951, that " the result will be obvious. Your sales will be lower " can only have reference to an arrangement of this kind, otherwise no question of the sales being lower could arise. In the case of an outright sale, the sale would be complete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them. The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case, it certainly includes this system.Moolji Sicka & Companys reply is dated 9th August, 1951. They say-"We are in receipt of your letter No. 7B/29/-17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months. We are sure this will now enable you to keep adequate stocks of our bidis. Awaiting your esteemed orders. "This is an acceptance of the interpretation of the " guarantee period " as given by the Canteen Stores in their letter of 31st July, 1951. The words "now" and "adequate" relate to the dispute which started on 24th April, 1951, when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots. The , subsequent correspondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides. It all ended by Moolji Sicka & Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick& & Company accepted- the " Consignment System " on 9th August, 1951. That imported a "pay as we sell" arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the "transition period " the Direct Supply System was also to continue. That meant that there would be two systems in force for a time in certain depots: the "Consignment System " regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the " Direct Supply System " till such time as the depots were stocked. The third system of " Outright Purchase " was limited for the time being to the Pathankot and Srinagarare unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent aseven if all that be disregarded and it be assumed that Moolji Sicka & Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fullycan be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of thethey were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply ofare of opinion that it continues in being till it is fully discharged by performance on both sides.It was contended, on the strength. of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by bothneed not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these contracts which Moolji Sicka & Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucialour opinion, this is a type of contract to which section 236(3) of the Indian Contract Act wouldfeel that some reasonable meaning must be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility. If not, its interests are safeguarded as we think the Constitution intended that they should be.In the present case, there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that section 230(3) of the Indian Contract Act is designed to meet. It would, in our opinion, be disastrous, to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect- ed by a ponderous legal document couched in a particular form. it may be that Government will not be bound by the contract in that case, but that -is a very different thing from saying that the contracts as such are void and of no effect. It only means "that the principal cannot be sued-; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam v. Cavaly Venkata Narrainapah(8 M.I.A. 529 at 554.). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been, sued on them by reason of articleour opinion, the Election Tribunal was-right in disqualifying Chatturbhujwe are not really concerned with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the newour opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlyingonly modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broadneed not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) areis no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra ( R.W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste onthis evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the converts caste status, at any rate, , so far as the householder section of the Panth is concerned.We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham(9 M.I.A. 199. 199.), we hold that despite his conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us.
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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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law, may by his course of conduct after his conversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters has adopted and acted. upon some particular law, or by having himself observed some family usage or custom; and nothing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which-he has adopted, or the rules which he has observed. "Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been no rigid adherence to them among his followers in later years. They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties. We need not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars.24. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra ( R.W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste on conversion.25. On this evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the converts caste status, at any rate, , so far as the householder section of the Panth is concerned.26. So much for the caste consciousness on both sides. Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages. His first wife was never converted. His second wife was converted after her marriage. The witnesses say he was still regarded as a Mahar after his conversion and always looked upon himself as a Mahar and identified himself with the caste. No one on the other side denies this. As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava. If he was not, then he must have continued a Mahar even on their view.The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste. In 1936 he contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly, he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination. The Returning Officer described that as a "cleverly, worded document. " We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham(9 M.I.A. 199. 199.), we hold that despite his conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us.
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cannot be sued-; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam v. Cavaly Venkata Narrainapah(8 M.I.A. 529 at 554.). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been, sued on them by reason of articleour opinion, the Election Tribunal was-right in disqualifying Chatturbhujwe are not really concerned with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the newour opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlyingonly modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broadneed not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) areis no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra ( R.W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste onthis evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the converts caste status, at any rate, , so far as the householder section of the Panth is concerned.We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham(9 M.I.A. 199. 199.), we hold that despite his conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us.
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Delhi Science Fortum and Others Vs. Union of India and Another
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countries developed as well as under-developed. 25. It appears that the Telecom Regulatory Authority of India Ordinance, 1996 has been promulgated after the hearing of the writ petitions concluded. From the preamble of the said Ordinance it appears that object thereof is to establish the Telecom Regulatory Authority of India tn regulate the telecommunication services, and for matters connected therewith or incidental thereto. Section 2(i) defines telecommunication service. Chapter II contains provisions in respect of the establishment of the Telecom Regulatory Authority of India and conditions of service in respect of Chairperson and members thereof. The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been the Chief Justice of a High Court. A Member shall be a person who is holding the post of Secretary or Additional Secretary to the Government of India or to any equivalent post in the Central Government or the State Government for a period of three years. The term of the Chairperson has been fixed at five years from the date on which he enters upon his office. So far the Member is concerned, he has to hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years, whichever is earlier. The other conditions have been prescribed in the said Chapter. Chapter III prescribes the powers and functions of the said Authority. Section 11 opens with a non-obstante clause saying that notwithstanding anything contained in the Indian Telegraph Act, 1885, t he functions of the Authority shall be as specified in the said Section including to ensure technical compatibility and effective inter-relationship between different service providers, to ensures compliance of licence conditions by all service providers, to facilitate competition and promote efficiency in the operation of telecommunication services, to protect the interest of the consumers of the telecommunication services, to levy fees at such rates and in respect of such services as may be determined by regulations. Sub-section (2) of Section 11 says: "Notwithstanding anything contained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, notify the rates at which the telecommunication. services within India and outside India shall be provided under this Ordinance including rates at which messages shall be transmitted to any country outside India." * 26. Sub-section (2) of Section 11 has also a non-obstante clause giving over-riding effects to said sub-section over anything contained in the Indian Telegraph Act, 1885. In view of the aforesaid sub-section, the Authority may from time to time by order notify the rate at which telecommunication services within India and outside India shall be provided. Sub-section (3) of Section 11 enjoins the Authority not to act against the interest. of the sovereignty, integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. In view of Section 12 if the Authority considers it expedient so to do, it may by order in writing call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. It can also appoint one or more persons to make enquiry in relation to the affairs of any service provider. 27. The Authority can also direct any of its officers or employees to inspect the books of accounts or other documents of any service provider. The Authority has been vested with the powers to issue such directions to service providers as it may consider necessary, for proper functioning by the service provider. Section 13 also reiterates the said power of the Authority by saying that for its functions under sub-section (1) of Section 11, the Authority can issue such directions from time to time to service provider as it may consider necessary. Chapter IV contains provision to respect of settlement of disputes. Section 29 provides for penalty if any person violates the directions of the Authority and Section 30 prescribes for punishment if the offence is alleged to have been committed by a Company. With the establishment of the Telecom Regulatory Authority of India, it can be said that an independent telecom Regulatory Authority is to supervise the functioning of different Telecom service providers and their activities can be regulated in accordance with the provisions of the said Ordinance.Section V of Tender Documents contains financial Conditions. Clause 2.0 thereof says: "TARIFF: Tariff for the SERVICE provided by the LIC ENSEE shall not be more than DOTs Tariff. Tariff is subject to regulation by Telecom Regulatory Authority of India, as and when such an authority is set up by the Government of India." * 28. The aforesaid condition provides that licensee shall not charge tariff for service more than DOTs tariff and such tariff shall be subject to regulation by Telecom Regulatory Authority of India. This condition shall safeguard the interest of the persons to whom services are provided by the licensees. 29. The new Telecom Policy is not only a commercial venture of the Central Government, but the object of the policy is also to improve the service so that the said service should reach the common man and should be within his re ach. The different licensees should not be left to implement the said Telecom Policy according to their perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DOT/MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends.
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0[ds]According to us the power and authority of the Central Government to grant licences to private bodies including Companies subject to conditions and considerations for payments cannot be questioned. That right flows from the same(1) of Section 4 which vests that privilege and right in the Central Government. Of course, there can be controversy in respect of the manner in which such right and privilege which has been vested in the Central Government has been parted with in favour of private bodies. It cannot be disputed that in respect of grant of any right or licence by the Central Government or an authority which can be held to be State within the meaning of Article 12 of the Constitution not only the source of the power has to be traced, but it has also to be found that the procedure adopted for such grant was reasonable, rational and inconfirmity with the conditions which had been announced.Statutory authorities have some times used their discretionary power to confer social or economic benefits on a particular section or group of community. The plea raised is that the Act vests power in them to be exercised as they think fit. This is a misconception. Such provisions while vesting powers in authorities including the Central Government also enjoin a fiduciary duty to act with due restrain, to avoid misplaced philanthropy orappears that almost all the countries of the world who have privatized the telecommunications, have constituted Regulatory Authorities under she different enactments. In United Kingdom under the Telecommunications Act, 1984 a Regulatory Authority has been constituted to secure that the telecommunications services are provided throughout the United Kingdom and to supervise the connected issues. Such Authority has to promote the interests of the consumers, purchasers and other users in the United Kingdom (including in particular those who are disabled or of pensionable age) in respect of prices charged for and the quality and variety of, telecommunications services provided. It also maintains and promotes effective competition between persons engaged in commercial activities connected with telecommunications in the United Kingdom. The Authority is also responsible to encourage persons providing telecommunication services and telecommunication apparatus in the United Kingdom to compete effectively in the provision of such services and supply of such apparatus outside the United Kingdom. In United States the Federal Communication Commission created by the Communication Act, 1934 is a primary federal regulator of the communication industry. The Federal Communication Commission is currently organized into six bureaus. As a general rule the operating bureaus a re authorized to enforce existing Commission decisions and policies. Wireless Telecommunication Bureau has the responsibility to supervise all wireless technologies including Cellular services. In Canada the Telecommunication Act which is the primary statute relating to telecommunication came into force in 1993 replacing variety of statutes. It contains different provisions to review the functioning of the telecommunications and vests power in authorities in respect of supervision and implementation of the said policy. In Australia, AUSTEL is responsible for regulation of telecommunication services, equipment and cabling under Telecoms Act, 1991. AUSTEL determines standards relating to network integrity and safety, compliance with recognized international standards andquality of service.In France, General Directorate for Post and Telecommunications, DCPT has the responsibilities of determining and adapting the economic and technical framework for post and telecommunications activities, ensuring the conditions of fair competition among the various competitors in the telecommunications field. There are other supervisory and advisory bodies assisting the regulation of the telecommunications. In Japan the Telecommunications Technology Council has over all responsibility to coordinate the services, with outside administrative bodies and various manufacturers, users, institutes and other organizations in establishing the standards for Japan. Similar is the position in many other countries developed as well asappears that the Telecom Regulatory Authority of India Ordinance, 1996 has been promulgated after the hearing of the writ petitions concluded. From the preamble of the said Ordinance it appears that object thereof is to establish the Telecom Regulatory Authority of India tn regulate the telecommunication services, and for matters connected therewith or incidental thereto. Section 2(i) defines telecommunication service. Chapter II contains provisions in respect of the establishment of the Telecom Regulatory Authority of India and conditions of service in respect of Chairperson and members thereof. The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been the Chief Justice of a High Court. A Member shall be a person who is holding the post of Secretary or Additional Secretary to the Government of India or to any equivalent post in the Central Government or the State Government for a period of three years. The term of the Chairperson has been fixed at five years from the date on which he enters upon his office. So far the Member is concerned, he has to hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years, whichever is earlier. The other conditions have been prescribed in the said Chapter. Chapter III prescribes the powers and functions of the said Authority. Section 11 opens with aclause saying that notwithstanding anything contained in the Indian Telegraph Act, 1885, t he functions of the Authority shall be as specified in the said Section including to ensure technical compatibility and effectivebetween different service providers, to ensures compliance of licence conditions by all service providers, to facilitate competition and promote efficiency in the operation of telecommunication services, to protect the interest of the consumers of the telecommunication services, to levy fees at such rates and in respect of such services as may be determined by regulations.(2) of Section 11anything contained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, notify the rates at which the telecommunication. services within India and outside India shall be provided under this Ordinance including rates at which messages shall be transmitted to any country outside India."(2) of Section 11has also aing effects to saidover anything contained in the Indian Telegraph Act, 1885. In view of the aforesaidthe Authority may from time to time by order notify the rate at which telecommunication services within India and outside India shall be provided.(3) of Section 11 enjoins the Authority not to act against the interest. of the sovereignty, integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. In view of Section 12 if the Authority considers it expedient so to do, it may by order in writing call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. It can also appoint one or more persons to make enquiry in relation to the affairs of any serviceAuthority can also direct any of its officers or employees to inspect the books of accounts or other documents of any service provider. The Authority has been vested with the powers to issue such directions to service providers as it may consider necessary, for proper functioning by the service provider. Section 13 also reiterates the said power of the Authority by saying that for its functions under(1) of Section 11, the Authority can issue such directions from time to time to service provider as it may consider necessary. Chapter IV contains provision to respect of settlement of disputes. Section 29 provides for penalty if any person violates the directions of the Authority and Section 30 prescribes for punishment if the offence is alleged to have been committed by a Company. With the establishment of the Telecom Regulatory Authority of India, it can be said that an independent telecom Regulatory Authority is to supervise the functioning of different Telecom service providers and their activities can be regulated in accordance with the provisions of the said Ordinance.Section V of Tender Documents contains financial Conditions. Clause 2.0 thereofTariff for the SERVICE provided by the LIC ENSEE shall not be more than DOTs Tariff. Tariff is subject to regulation by Telecom Regulatory Authority of India, as and when such an authority is set up by the Government of India."aforesaid condition provides that licensee shall not charge tariff for service more than DOTs tariff and such tariff shall be subject to regulation by Telecom Regulatory Authority of India. This condition shall safeguard the interest of the persons to whom services are provided by thenew Telecom Policy is not only a commercial venture of the Central Government, but the object of the policy is also to improve the service so that the said service should reach the common man and should be within his re ach. The different licensees should not be left to implement the said Telecom Policy according to their perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DOT/MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends.
| 0 | 9,501 | 1,703 |
### 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:
countries developed as well as under-developed. 25. It appears that the Telecom Regulatory Authority of India Ordinance, 1996 has been promulgated after the hearing of the writ petitions concluded. From the preamble of the said Ordinance it appears that object thereof is to establish the Telecom Regulatory Authority of India tn regulate the telecommunication services, and for matters connected therewith or incidental thereto. Section 2(i) defines telecommunication service. Chapter II contains provisions in respect of the establishment of the Telecom Regulatory Authority of India and conditions of service in respect of Chairperson and members thereof. The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been the Chief Justice of a High Court. A Member shall be a person who is holding the post of Secretary or Additional Secretary to the Government of India or to any equivalent post in the Central Government or the State Government for a period of three years. The term of the Chairperson has been fixed at five years from the date on which he enters upon his office. So far the Member is concerned, he has to hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years, whichever is earlier. The other conditions have been prescribed in the said Chapter. Chapter III prescribes the powers and functions of the said Authority. Section 11 opens with a non-obstante clause saying that notwithstanding anything contained in the Indian Telegraph Act, 1885, t he functions of the Authority shall be as specified in the said Section including to ensure technical compatibility and effective inter-relationship between different service providers, to ensures compliance of licence conditions by all service providers, to facilitate competition and promote efficiency in the operation of telecommunication services, to protect the interest of the consumers of the telecommunication services, to levy fees at such rates and in respect of such services as may be determined by regulations. Sub-section (2) of Section 11 says: "Notwithstanding anything contained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, notify the rates at which the telecommunication. services within India and outside India shall be provided under this Ordinance including rates at which messages shall be transmitted to any country outside India." * 26. Sub-section (2) of Section 11 has also a non-obstante clause giving over-riding effects to said sub-section over anything contained in the Indian Telegraph Act, 1885. In view of the aforesaid sub-section, the Authority may from time to time by order notify the rate at which telecommunication services within India and outside India shall be provided. Sub-section (3) of Section 11 enjoins the Authority not to act against the interest. of the sovereignty, integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. In view of Section 12 if the Authority considers it expedient so to do, it may by order in writing call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. It can also appoint one or more persons to make enquiry in relation to the affairs of any service provider. 27. The Authority can also direct any of its officers or employees to inspect the books of accounts or other documents of any service provider. The Authority has been vested with the powers to issue such directions to service providers as it may consider necessary, for proper functioning by the service provider. Section 13 also reiterates the said power of the Authority by saying that for its functions under sub-section (1) of Section 11, the Authority can issue such directions from time to time to service provider as it may consider necessary. Chapter IV contains provision to respect of settlement of disputes. Section 29 provides for penalty if any person violates the directions of the Authority and Section 30 prescribes for punishment if the offence is alleged to have been committed by a Company. With the establishment of the Telecom Regulatory Authority of India, it can be said that an independent telecom Regulatory Authority is to supervise the functioning of different Telecom service providers and their activities can be regulated in accordance with the provisions of the said Ordinance.Section V of Tender Documents contains financial Conditions. Clause 2.0 thereof says: "TARIFF: Tariff for the SERVICE provided by the LIC ENSEE shall not be more than DOTs Tariff. Tariff is subject to regulation by Telecom Regulatory Authority of India, as and when such an authority is set up by the Government of India." * 28. The aforesaid condition provides that licensee shall not charge tariff for service more than DOTs tariff and such tariff shall be subject to regulation by Telecom Regulatory Authority of India. This condition shall safeguard the interest of the persons to whom services are provided by the licensees. 29. The new Telecom Policy is not only a commercial venture of the Central Government, but the object of the policy is also to improve the service so that the said service should reach the common man and should be within his re ach. The different licensees should not be left to implement the said Telecom Policy according to their perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DOT/MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends.
### Response:
0
### Explanation:
assisting the regulation of the telecommunications. In Japan the Telecommunications Technology Council has over all responsibility to coordinate the services, with outside administrative bodies and various manufacturers, users, institutes and other organizations in establishing the standards for Japan. Similar is the position in many other countries developed as well asappears that the Telecom Regulatory Authority of India Ordinance, 1996 has been promulgated after the hearing of the writ petitions concluded. From the preamble of the said Ordinance it appears that object thereof is to establish the Telecom Regulatory Authority of India tn regulate the telecommunication services, and for matters connected therewith or incidental thereto. Section 2(i) defines telecommunication service. Chapter II contains provisions in respect of the establishment of the Telecom Regulatory Authority of India and conditions of service in respect of Chairperson and members thereof. The Chairperson shall be a person who is or has been a Judge of the Supreme Court or who is or has been the Chief Justice of a High Court. A Member shall be a person who is holding the post of Secretary or Additional Secretary to the Government of India or to any equivalent post in the Central Government or the State Government for a period of three years. The term of the Chairperson has been fixed at five years from the date on which he enters upon his office. So far the Member is concerned, he has to hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 62 years, whichever is earlier. The other conditions have been prescribed in the said Chapter. Chapter III prescribes the powers and functions of the said Authority. Section 11 opens with aclause saying that notwithstanding anything contained in the Indian Telegraph Act, 1885, t he functions of the Authority shall be as specified in the said Section including to ensure technical compatibility and effectivebetween different service providers, to ensures compliance of licence conditions by all service providers, to facilitate competition and promote efficiency in the operation of telecommunication services, to protect the interest of the consumers of the telecommunication services, to levy fees at such rates and in respect of such services as may be determined by regulations.(2) of Section 11anything contained in the Indian Telegraph Act, 1885, the Authority may, from time to time, by order, notify the rates at which the telecommunication. services within India and outside India shall be provided under this Ordinance including rates at which messages shall be transmitted to any country outside India."(2) of Section 11has also aing effects to saidover anything contained in the Indian Telegraph Act, 1885. In view of the aforesaidthe Authority may from time to time by order notify the rate at which telecommunication services within India and outside India shall be provided.(3) of Section 11 enjoins the Authority not to act against the interest. of the sovereignty, integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. In view of Section 12 if the Authority considers it expedient so to do, it may by order in writing call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. It can also appoint one or more persons to make enquiry in relation to the affairs of any serviceAuthority can also direct any of its officers or employees to inspect the books of accounts or other documents of any service provider. The Authority has been vested with the powers to issue such directions to service providers as it may consider necessary, for proper functioning by the service provider. Section 13 also reiterates the said power of the Authority by saying that for its functions under(1) of Section 11, the Authority can issue such directions from time to time to service provider as it may consider necessary. Chapter IV contains provision to respect of settlement of disputes. Section 29 provides for penalty if any person violates the directions of the Authority and Section 30 prescribes for punishment if the offence is alleged to have been committed by a Company. With the establishment of the Telecom Regulatory Authority of India, it can be said that an independent telecom Regulatory Authority is to supervise the functioning of different Telecom service providers and their activities can be regulated in accordance with the provisions of the said Ordinance.Section V of Tender Documents contains financial Conditions. Clause 2.0 thereofTariff for the SERVICE provided by the LIC ENSEE shall not be more than DOTs Tariff. Tariff is subject to regulation by Telecom Regulatory Authority of India, as and when such an authority is set up by the Government of India."aforesaid condition provides that licensee shall not charge tariff for service more than DOTs tariff and such tariff shall be subject to regulation by Telecom Regulatory Authority of India. This condition shall safeguard the interest of the persons to whom services are provided by thenew Telecom Policy is not only a commercial venture of the Central Government, but the object of the policy is also to improve the service so that the said service should reach the common man and should be within his re ach. The different licensees should not be left to implement the said Telecom Policy according to their perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DOT/MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends.
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State of Uttar Pradesh Vs. Tipper Chand
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Fazal Ali, J.1. This is an appeal by special leave against the judgment dated September 12, 1969, of a Single Judge of the High Court of Allahabad accepting an application under Section 115 of the Code of Civil Procedure, setting aside the orders of the courts below and directing that the application made by the defendant under Section 34 of the Arbitration Act shall stand rejected so that the suit would proceed2. The suit out of which this appeal has arisen was filed by the respondent before us for recovery of Rs. 2, 000 on account of dues recoverable from the irrigation Department of the petitioner State for work done by the plaintiff in pursuance of an agreement, Clause 22 of which runs thus:"Except where otherwise specified in the contract the decision of the Superintending Engineer for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, design, drawing and instructions hereinbefore mentioned. The decision of such Engineer as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawing specifications, estimates, instructions, orders, or these conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of the contract by the contractor, shall also be final, conclusive and binding on the contractor."3. The defendant-respondent made an application under Section 34 of the Arbitration Act to the trial Court on the plea that the above extracted Clause 22 amounted to an arbitration agreement. The pleas found favour with the trial Court as well as the appellate court but was rejected by the High Court in revision on the ground that it merely conferred power on the Superintending Engineer to take decisions on his own and that it did not authorise the parties to refer any matter to his arbitration. In this connection the High Court particularly adverted to the marginal note to the said clause which was to the following effect Direction of work4. After perusing the contents of the said clause and hearing learned counsel for the parties we find ourselves in complete agreement with the view taken by the High Court. Admittedly the clause does not contain any express arbitration agreement. Nor can such an agreement be spelled out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time to time.5. Mr. Dixit relied on Governor-General v. Simla Banking and Industrial Company Ltd. (AIR 1947 Lah 215 : 226 IC 444), Dewan Chand v. State of Jammu and Kashmir (AIR 1961 J&K 58) and Ram Lal v. Punjab State (AIR 1966 Punj 436 : 68 Punj LR 522 : ILR 1966 2 Punj 428). In the first of these authorities the clause appearing in the contract of the parties which was held by Abdur Rahman, J., to amount to an arbitration agreement was practically, word for word, the same with which we are concerned here but we are of the opinion that the interpretation put thereupon was not correct. As pointed out by the High Court such a clause can be interpreted only as one conferring power on the Superintending Engineer to take decisions all by himself and not by reason of any reference which the parties might make to him.6. In the Jammu and Kashmir case (AIR 1961 J&K 58) the relevant clause was couched in these terms:"For any dispute between the contractor and the Department the decision of the Chief Engineer PWD Jammu and Kashmir, will be final and binding upon the contractor"The language of this clause is materially different from the clause in the present case and in our opinion was correctly interpreted as amounting to an arbitration agreement. In this connection the use of the words "any dispute between the contractor and the Department" are significant. The same is true of the clause in Ram Lal case (AIR 1966 Punj 436 : 68 Punj LR 522 : ILR 1966 2 Punj 428) which ran thusIn matter of dispute the case shall be referred to the Superintending Engineer of the Circle, whose order shall be final.We need hardly say that this clause refers not only to a dispute between the parties to the contract but also specifically mentions a reference to the Superintending Engineer and must therefore be held to have been rightly interpreted as an arbitration agreement
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0[ds]4. After perusing the contents of the said clause and hearing learned counsel for the parties we find ourselves in complete agreement with the view taken by the High Court. Admittedly the clause does not contain any express arbitration agreement. Nor can such an agreement be spelled out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time toneed hardly say that this clause refers not only to a dispute between the parties to the contract but also specifically mentions a reference to the Superintending Engineer and must therefore be held to have been rightly interpreted as an arbitration agreement
| 0 | 884 | 154 |
### 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:
Fazal Ali, J.1. This is an appeal by special leave against the judgment dated September 12, 1969, of a Single Judge of the High Court of Allahabad accepting an application under Section 115 of the Code of Civil Procedure, setting aside the orders of the courts below and directing that the application made by the defendant under Section 34 of the Arbitration Act shall stand rejected so that the suit would proceed2. The suit out of which this appeal has arisen was filed by the respondent before us for recovery of Rs. 2, 000 on account of dues recoverable from the irrigation Department of the petitioner State for work done by the plaintiff in pursuance of an agreement, Clause 22 of which runs thus:"Except where otherwise specified in the contract the decision of the Superintending Engineer for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, design, drawing and instructions hereinbefore mentioned. The decision of such Engineer as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawing specifications, estimates, instructions, orders, or these conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of the contract by the contractor, shall also be final, conclusive and binding on the contractor."3. The defendant-respondent made an application under Section 34 of the Arbitration Act to the trial Court on the plea that the above extracted Clause 22 amounted to an arbitration agreement. The pleas found favour with the trial Court as well as the appellate court but was rejected by the High Court in revision on the ground that it merely conferred power on the Superintending Engineer to take decisions on his own and that it did not authorise the parties to refer any matter to his arbitration. In this connection the High Court particularly adverted to the marginal note to the said clause which was to the following effect Direction of work4. After perusing the contents of the said clause and hearing learned counsel for the parties we find ourselves in complete agreement with the view taken by the High Court. Admittedly the clause does not contain any express arbitration agreement. Nor can such an agreement be spelled out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time to time.5. Mr. Dixit relied on Governor-General v. Simla Banking and Industrial Company Ltd. (AIR 1947 Lah 215 : 226 IC 444), Dewan Chand v. State of Jammu and Kashmir (AIR 1961 J&K 58) and Ram Lal v. Punjab State (AIR 1966 Punj 436 : 68 Punj LR 522 : ILR 1966 2 Punj 428). In the first of these authorities the clause appearing in the contract of the parties which was held by Abdur Rahman, J., to amount to an arbitration agreement was practically, word for word, the same with which we are concerned here but we are of the opinion that the interpretation put thereupon was not correct. As pointed out by the High Court such a clause can be interpreted only as one conferring power on the Superintending Engineer to take decisions all by himself and not by reason of any reference which the parties might make to him.6. In the Jammu and Kashmir case (AIR 1961 J&K 58) the relevant clause was couched in these terms:"For any dispute between the contractor and the Department the decision of the Chief Engineer PWD Jammu and Kashmir, will be final and binding upon the contractor"The language of this clause is materially different from the clause in the present case and in our opinion was correctly interpreted as amounting to an arbitration agreement. In this connection the use of the words "any dispute between the contractor and the Department" are significant. The same is true of the clause in Ram Lal case (AIR 1966 Punj 436 : 68 Punj LR 522 : ILR 1966 2 Punj 428) which ran thusIn matter of dispute the case shall be referred to the Superintending Engineer of the Circle, whose order shall be final.We need hardly say that this clause refers not only to a dispute between the parties to the contract but also specifically mentions a reference to the Superintending Engineer and must therefore be held to have been rightly interpreted as an arbitration agreement
### Response:
0
### Explanation:
4. After perusing the contents of the said clause and hearing learned counsel for the parties we find ourselves in complete agreement with the view taken by the High Court. Admittedly the clause does not contain any express arbitration agreement. Nor can such an agreement be spelled out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time toneed hardly say that this clause refers not only to a dispute between the parties to the contract but also specifically mentions a reference to the Superintending Engineer and must therefore be held to have been rightly interpreted as an arbitration agreement
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Southern Petrochemical Industries Co.Ltd Vs. Electricity Inspector And E.T.I.O.
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to the question of duty, we have no hesitation in an outright rejection of the extreme contention put forward on behalf of the appellants that no duty is liviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff.11. Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of Section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified therein. On the basis of the said expression the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy supplied. Such an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. This is made further clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958. Sub-rule (1) says:The duty under clauses (iii) and (iv) of sub-section (1) of Section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the supply is governed by a two-part tariff." In that case, no term like "net energy" existed. 168. We may notice that this Court in West Coast Papers Mills Ltd (supra), held that no tax can be invoked on transmission loss stating: "7. We have set out the relevant provisions of the Act, and it would appear therefrom that electricity tax is payable on the units of energy consumed. The one question with which we are concerned in this appeal is whether electricity tax is payable in respect of the electrical energy which is lost in transmission as a result of transmission loss or transformer loss. So far as this question is concerned, we are of the view that no tax is payable on the electricity so lost. The entire scheme of the Act is to tax the consumption of electrical energy. Where some energy is not consumed but lost before it reaches the point of consumption, the question of levy of tax on consumption of such energy would not in the very nature of things arise. The place of consumption of electrical energy is normally at some distance from the place where electrical energy is generated. Electrical energy has consequently to be transmitted through metal conductors to the place where it is consumed. Such transmission admittedly entails loss of some electrical energy and what is lost can plainly be not available for consumption and as such would not be consumed. If a person, for example, generates 100 units of electrical energy and loses 10 units in the process of transmission from the point of generation to the point of consumption, he would in the very nature of things be able to supply only 90 units of electrical energy to the consumers. The tax which would be payable on the electrical energy consumed in such a case would be only for 90 units and not 100 units. To hold otherwise and to realise tax on 100 units of electrical energy would be tantamount to levying tax on the generation or production of electrical energy and not on its consumption. Such a tax on the generation or production of electrical energy is plainly not permissible under the Act. The fact that the consumer happens in the present case to be the same Company which generated the electrical energy would, in our opinion, make no material difference." 169. Our attention has been drawn to a simple bill, from a perusal whereof it appears that although permitted MD was 350 KVA, the recorded demand being 144 KVA, electricity tax was charged only on the basis of 144 KVA and not on the basis of 350 KVA. Keeping in view the fact that the maximum demand postulates something other than actual delivery of electricity, the question of imposition of any tax thereupon does not arise. The decision of this Court in M/s. Northern India Iron & Steel Co. (supra) did not assign any reason. The said decision did not take into consideration the provisions of Article 366 (12) of the Constitution of India or the effect of Entry 53 of List II of the Seventh Schedule of the Constitution of India. It has also not been taken into consideration that the State cannot impose tax only because the State Electricity Board would be entitled to levy tax on certain services. It would bear repetition to state that the concept of tariff and tax is different. Whereas tariff would include a list of charges, the tax must be on actual basis. It is also not the case nor can it be that imposition of tax on actual sale or consumption of electrical energy was impossible keeping in view of the particular fact situation. As noticed hereinbefore, two different meters are installed; one, for the purpose of actual consumption of electrical energy and another being a trivector, the same merely records the maximum demand.170. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. A decision is not an authority on a point which has not been considered.
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1[ds]77. This leaves to the question as to whether the provisions of Section 14 of the 2003 Act should be read in such a manner so as to make it in consonance with Article 14 of the Constitution of India. The learned counsel would contend that Section 14 is loosely worded. We do nothave to give a new meaning which would amount to judicial legislation. We do not see any need therefor as thereby the taxation provision would be given a new dimension, by reason whereof not only exemption provisions will have to be understood in the context of sale of electricity but also consumption thereof.80. We are not unmindful of the fact that the 2003 Act was enacted not only to consolidate but also to rationalize the Act. Mr. Nariman takes us to various authorities in regard to the construction of a consolidating statute including IRC v. Hinchy [1960] 1 All ER 505, Beswick v. Beswick [1967] 2 All ER 1197, Dir. Of Public Prosecutions v. Schildkamp [1969] 3 All ER 1640], Maunsell v. Olins [1975] 1 All ER 16 and Farrell v. Alexander [1976] 2 All ER 721, to suggest that a consolidating statute is not meant to alter law. But, in these decisions, it has also been suggested that a consolidating statute may also be an amending act.Submission of Mr. Andhyarujina that this Court must read the words "unless a different intention appears" in(1) of Section 20 of the 2003 Act, in our opinion, is impermissible in law. We have rejected a similar contention of Mr. Nariman urging us to read down and apply the purported rule of purposive construction while construing Section 14 of the 2003 Act. We do not intend to apply different tests in the matter of construction of Section 20 of the 2003 Act. Omission of words in a particular statute may play an important role. The intention of the legislature must be, as is well known, gathered from the words used in the statute at the first instance and only when such a rule would give rise to anomalous situation, the court may take recourse to purposive construction. It is also a well settled principles of law that casus omissus cannot be supplied. [See J. Srinivasa Rao v. Govt. of A.P. and Anr. 2006 (13) SCALEIf the legislature has used different words, or has omitted certain words, in our opinion, the same cannot be read as containing the words "unless a different intention appears". It may be that the provisions of the 2003 Act are demonstrably different from the 1962 Act but we must assume that the legislature did so deliberately.The High Court, therefore, in our opinion, committed a manifest error in opining that both the provisions relate to the same scenario. Furthermore,(2) of Section 20 of the 2003 Act uses the expression "notwithstanding such repeal" and, thus, the same cannot be construed to be notwithstanding anything contained in(1) of Section 20 thereof.In our opinion, it would not be correct to contend that only because(2) of Section 20 of the 2003 Act refers to notification, the same would not mean that wherever the word notification has been issued,(1) thereof will have no application.We are, however, in a case of this nature, not really concerned with the question as to whether even an inchoate right can be subject matter of a saving clause. Such a question, in our opinion, does not arise for consideration herein.Referring to Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [(1979) 2 SCC 409] , this CourtAs for its strengths it was said: that the doctrine was not limited only to cases where there was some contractual relationship or otherlegal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made contractual, administrative or statutory. To put it in the words of the Court:The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promise and, in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promise, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. (SCC p. 442, paraWe, therefore, are of the opinion that doctrine of promissory estoppel also preserves a right. A right would be preserved when it is not expressly taken away but in fact has expressly been preserved.145. In view of the application of doctrine of promissory estoppel in the case of the appellants, their right is not destroyed and in that view of the matter although the Scheme under the impugned Act is different from the 1939 Act and the 1962 Act and furthermore in view of the phraseology used in Section 20(1) of the 2003 Act, right of the appellants cannot be said to have been destroyed. The legislature in fact has acknowledged that right to be existing in the appellants.From the definitions of aforementioned types of demand, it would appear that maximum demand in a month means the highest value of the energy delivered at the point of supply of the consumer during any consecutive thirty minutes in a month. It is, therefore, incorrect to contend that there does not exist any distinction between actual consumption and maximum demand. The High Court itself has noticed a distinction between Low Tension consumption and High Tension consumption. There indeed exists such a definition. Therefore, in our opinion, such a construction would not be correct.Our attention has been drawn to a simple bill, from a perusal whereof it appears that although permitted MD was 350 KVA, the recorded demand being 144 KVA, electricity tax was charged only on the basis of 144 KVA and not on the basis of 350 KVA. Keeping in view the fact that the maximum demand postulates something other than actual delivery of electricity, the question of imposition of any tax thereupon does not arise. The decision of this Court in M/s. Northern India Iron & Steel Co. (supra) did not assign any reason. The said decision did not take into consideration the provisions of Article 366 (12) of the Constitution of India or the effect of Entry 53 of List II of the Seventh Schedule of the Constitution of India. It has also not been taken into consideration that the State cannot impose tax only because the State Electricity Board would be entitled to levy tax on certain services. It would bear repetition to state that the concept of tariff and tax is different. Whereas tariff would include a list of charges, the tax must be on actual basis. It is also not the case nor can it be that imposition of tax on actual sale or consumption of electrical energy was impossible keeping in view of the particular fact situation. As noticed hereinbefore, two different meters are installed; one, for the purpose of actual consumption of electrical energy and another being a trivector, the same merely records the maximum demand.170. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. A decision is not an authority on a point which has not been considered.
| 1 | 25,956 | 1,442 |
### 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:
to the question of duty, we have no hesitation in an outright rejection of the extreme contention put forward on behalf of the appellants that no duty is liviable at all on the demand charge. But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff.11. Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the electricity duty, computed at the rates indicated in the various clauses of sub-section (1) of Section 3. The expression used in the various clauses is where the energy is supplied to a particular type of consumer, then the rate of duty will be as specified therein. On the basis of the said expression the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy supplied. Such an argument is too obviously wrong to be accepted. Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month. The price of energy in a two-part tariff system would mean and include the energy charge as also the demand charge. This is made further clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958. Sub-rule (1) says:The duty under clauses (iii) and (iv) of sub-section (1) of Section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the supply is governed by a two-part tariff." In that case, no term like "net energy" existed. 168. We may notice that this Court in West Coast Papers Mills Ltd (supra), held that no tax can be invoked on transmission loss stating: "7. We have set out the relevant provisions of the Act, and it would appear therefrom that electricity tax is payable on the units of energy consumed. The one question with which we are concerned in this appeal is whether electricity tax is payable in respect of the electrical energy which is lost in transmission as a result of transmission loss or transformer loss. So far as this question is concerned, we are of the view that no tax is payable on the electricity so lost. The entire scheme of the Act is to tax the consumption of electrical energy. Where some energy is not consumed but lost before it reaches the point of consumption, the question of levy of tax on consumption of such energy would not in the very nature of things arise. The place of consumption of electrical energy is normally at some distance from the place where electrical energy is generated. Electrical energy has consequently to be transmitted through metal conductors to the place where it is consumed. Such transmission admittedly entails loss of some electrical energy and what is lost can plainly be not available for consumption and as such would not be consumed. If a person, for example, generates 100 units of electrical energy and loses 10 units in the process of transmission from the point of generation to the point of consumption, he would in the very nature of things be able to supply only 90 units of electrical energy to the consumers. The tax which would be payable on the electrical energy consumed in such a case would be only for 90 units and not 100 units. To hold otherwise and to realise tax on 100 units of electrical energy would be tantamount to levying tax on the generation or production of electrical energy and not on its consumption. Such a tax on the generation or production of electrical energy is plainly not permissible under the Act. The fact that the consumer happens in the present case to be the same Company which generated the electrical energy would, in our opinion, make no material difference." 169. Our attention has been drawn to a simple bill, from a perusal whereof it appears that although permitted MD was 350 KVA, the recorded demand being 144 KVA, electricity tax was charged only on the basis of 144 KVA and not on the basis of 350 KVA. Keeping in view the fact that the maximum demand postulates something other than actual delivery of electricity, the question of imposition of any tax thereupon does not arise. The decision of this Court in M/s. Northern India Iron & Steel Co. (supra) did not assign any reason. The said decision did not take into consideration the provisions of Article 366 (12) of the Constitution of India or the effect of Entry 53 of List II of the Seventh Schedule of the Constitution of India. It has also not been taken into consideration that the State cannot impose tax only because the State Electricity Board would be entitled to levy tax on certain services. It would bear repetition to state that the concept of tariff and tax is different. Whereas tariff would include a list of charges, the tax must be on actual basis. It is also not the case nor can it be that imposition of tax on actual sale or consumption of electrical energy was impossible keeping in view of the particular fact situation. As noticed hereinbefore, two different meters are installed; one, for the purpose of actual consumption of electrical energy and another being a trivector, the same merely records the maximum demand.170. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. A decision is not an authority on a point which has not been considered.
### Response:
1
### Explanation:
2003 Act. We do not intend to apply different tests in the matter of construction of Section 20 of the 2003 Act. Omission of words in a particular statute may play an important role. The intention of the legislature must be, as is well known, gathered from the words used in the statute at the first instance and only when such a rule would give rise to anomalous situation, the court may take recourse to purposive construction. It is also a well settled principles of law that casus omissus cannot be supplied. [See J. Srinivasa Rao v. Govt. of A.P. and Anr. 2006 (13) SCALEIf the legislature has used different words, or has omitted certain words, in our opinion, the same cannot be read as containing the words "unless a different intention appears". It may be that the provisions of the 2003 Act are demonstrably different from the 1962 Act but we must assume that the legislature did so deliberately.The High Court, therefore, in our opinion, committed a manifest error in opining that both the provisions relate to the same scenario. Furthermore,(2) of Section 20 of the 2003 Act uses the expression "notwithstanding such repeal" and, thus, the same cannot be construed to be notwithstanding anything contained in(1) of Section 20 thereof.In our opinion, it would not be correct to contend that only because(2) of Section 20 of the 2003 Act refers to notification, the same would not mean that wherever the word notification has been issued,(1) thereof will have no application.We are, however, in a case of this nature, not really concerned with the question as to whether even an inchoate right can be subject matter of a saving clause. Such a question, in our opinion, does not arise for consideration herein.Referring to Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [(1979) 2 SCC 409] , this CourtAs for its strengths it was said: that the doctrine was not limited only to cases where there was some contractual relationship or otherlegal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made contractual, administrative or statutory. To put it in the words of the Court:The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promise and, in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promise, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. (SCC p. 442, paraWe, therefore, are of the opinion that doctrine of promissory estoppel also preserves a right. A right would be preserved when it is not expressly taken away but in fact has expressly been preserved.145. In view of the application of doctrine of promissory estoppel in the case of the appellants, their right is not destroyed and in that view of the matter although the Scheme under the impugned Act is different from the 1939 Act and the 1962 Act and furthermore in view of the phraseology used in Section 20(1) of the 2003 Act, right of the appellants cannot be said to have been destroyed. The legislature in fact has acknowledged that right to be existing in the appellants.From the definitions of aforementioned types of demand, it would appear that maximum demand in a month means the highest value of the energy delivered at the point of supply of the consumer during any consecutive thirty minutes in a month. It is, therefore, incorrect to contend that there does not exist any distinction between actual consumption and maximum demand. The High Court itself has noticed a distinction between Low Tension consumption and High Tension consumption. There indeed exists such a definition. Therefore, in our opinion, such a construction would not be correct.Our attention has been drawn to a simple bill, from a perusal whereof it appears that although permitted MD was 350 KVA, the recorded demand being 144 KVA, electricity tax was charged only on the basis of 144 KVA and not on the basis of 350 KVA. Keeping in view the fact that the maximum demand postulates something other than actual delivery of electricity, the question of imposition of any tax thereupon does not arise. The decision of this Court in M/s. Northern India Iron & Steel Co. (supra) did not assign any reason. The said decision did not take into consideration the provisions of Article 366 (12) of the Constitution of India or the effect of Entry 53 of List II of the Seventh Schedule of the Constitution of India. It has also not been taken into consideration that the State cannot impose tax only because the State Electricity Board would be entitled to levy tax on certain services. It would bear repetition to state that the concept of tariff and tax is different. Whereas tariff would include a list of charges, the tax must be on actual basis. It is also not the case nor can it be that imposition of tax on actual sale or consumption of electrical energy was impossible keeping in view of the particular fact situation. As noticed hereinbefore, two different meters are installed; one, for the purpose of actual consumption of electrical energy and another being a trivector, the same merely records the maximum demand.170. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. A decision is not an authority on a point which has not been considered.
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Management of Kirloskar Electric Company Vs. Their Workmen
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Grover, J.1. This is an appeal by special leave from an award of the Industrial Tribunal, Mysore. This Court, while granting special leave, confined it only to the question of giving of uniforms to welders and winders.2. The appellant has a factory employing on an average 200 workers. On February 12, l968 a reference was made by the Government of Mysore or adjudication to the Tribunal of six points which were in dispute. Point No. 4 was whether all workers should be provided with a pair of uniforms and a pair of shoes per year. In the written statement filed by the appellant before the Tribunal it was submitted that it was giving uniforms to its watchmen, drivers sweepers, canteen workers and such other workmen who were to be provided with protective clothing under the Factories Act and the Rules framed thereunder. It was not considered necessary that uniforms should be issued to other classes of workers.3. The Tribunal was of the view that a general demand that all workers should be provided with uniforms was not reasonable and was contrary to precedents. But it referred to the evidence produced on behalf of the workers according to which the turners and the winders had to do such work that their clothes got damaged or there was a likelihood of their getting damaged. As regards the winders it was observed that industrial operations have become so complex and complicated that for the purpose of determining whether turners, welders and winders should get clothes because it was likely that their clothes will get spoiled on account of the nature of work which they were performing, it was the totality of all operations and circumstances that should be taken into consideration. This is what the Tribunal proceeded to say : -"It may be that if the Turners and Winders work at the spot at which they are expected to work their clothes normally are not likely to get soiled. This however does not mean that the chances of their clothes getting soiled or damaged during the course of work which they perform, are far fetched or too remote."The Tribunal also referred to the other evidence produced and all the other circumstances and was of the view that considering the nature of the work which these three categories of workmen were performing and the type of machines with which they were dealing there was no scope for contending that the possibility of the clothes of these workmen getting soiled or damaged was too remote or far fetched. The Tribunal, therefore, held after also taking into consideration the additional financial burden involved in supplying uniforms to these categories of workmen that it was most unreasonable to deny the supply of uniforms to them.4. The sole argument of Mr. Shroff for the appellant is that there was hardly enough evidence on which any conclusion could be based that Turners, Winders and Welders were doing such kind of work that their clothes were likely to get soiled or damaged and therefore there was no question of making a direction that uniforms be supplied to them. At any rate, according to him, there was not a shred of evidence that the Welders were doing any such work which involved even the remote possibility of their clothes being spoiled in any manner. It is pointed out that the winders had to sit in a chair and operate the machines which were of such type that their clothes could never get soiled or damaged. We do not think that any case has been made out for interference by this court on the point which the special leave was granted. In the first place the Tribunal has taken into consideration not only the oral evidence but also all the other relevant circumstances. Secondly as laid down in Hindustan Antibiotics Ltd., v. The Workmen, (1967) 1 LLJ 114 =(AIR1967 SC 948) that Art. 136 is couched in widest terms, it is necessary for the Supreme Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principle of industrial law requiring elucidation and final decision by the Supreme Court. In our judgment this case is not of the type which falls within those classes of cases which according to the law laid down by this Court calls for any interference.
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0[ds]We do not think that any case has been made out for interference by this court on the point which the special leave was granted. In the first place the Tribunal has taken into consideration not only the oral evidence but also all the other relevant circumstances. Secondly as laid down in Hindustan Antibiotics Ltd., v. The Workmen, (1967) 1 LLJ 114 =(AIR1967 SC 948) that Art. 136 is couched in widest terms, it is necessary for the Supreme Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principle of industrial law requiring elucidation and final decision by the Supreme Court. In our judgment this case is not of the type which falls within those classes of cases which according to the law laid down by this Court calls for any interference.
| 0 | 775 | 157 |
### 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:
Grover, J.1. This is an appeal by special leave from an award of the Industrial Tribunal, Mysore. This Court, while granting special leave, confined it only to the question of giving of uniforms to welders and winders.2. The appellant has a factory employing on an average 200 workers. On February 12, l968 a reference was made by the Government of Mysore or adjudication to the Tribunal of six points which were in dispute. Point No. 4 was whether all workers should be provided with a pair of uniforms and a pair of shoes per year. In the written statement filed by the appellant before the Tribunal it was submitted that it was giving uniforms to its watchmen, drivers sweepers, canteen workers and such other workmen who were to be provided with protective clothing under the Factories Act and the Rules framed thereunder. It was not considered necessary that uniforms should be issued to other classes of workers.3. The Tribunal was of the view that a general demand that all workers should be provided with uniforms was not reasonable and was contrary to precedents. But it referred to the evidence produced on behalf of the workers according to which the turners and the winders had to do such work that their clothes got damaged or there was a likelihood of their getting damaged. As regards the winders it was observed that industrial operations have become so complex and complicated that for the purpose of determining whether turners, welders and winders should get clothes because it was likely that their clothes will get spoiled on account of the nature of work which they were performing, it was the totality of all operations and circumstances that should be taken into consideration. This is what the Tribunal proceeded to say : -"It may be that if the Turners and Winders work at the spot at which they are expected to work their clothes normally are not likely to get soiled. This however does not mean that the chances of their clothes getting soiled or damaged during the course of work which they perform, are far fetched or too remote."The Tribunal also referred to the other evidence produced and all the other circumstances and was of the view that considering the nature of the work which these three categories of workmen were performing and the type of machines with which they were dealing there was no scope for contending that the possibility of the clothes of these workmen getting soiled or damaged was too remote or far fetched. The Tribunal, therefore, held after also taking into consideration the additional financial burden involved in supplying uniforms to these categories of workmen that it was most unreasonable to deny the supply of uniforms to them.4. The sole argument of Mr. Shroff for the appellant is that there was hardly enough evidence on which any conclusion could be based that Turners, Winders and Welders were doing such kind of work that their clothes were likely to get soiled or damaged and therefore there was no question of making a direction that uniforms be supplied to them. At any rate, according to him, there was not a shred of evidence that the Welders were doing any such work which involved even the remote possibility of their clothes being spoiled in any manner. It is pointed out that the winders had to sit in a chair and operate the machines which were of such type that their clothes could never get soiled or damaged. We do not think that any case has been made out for interference by this court on the point which the special leave was granted. In the first place the Tribunal has taken into consideration not only the oral evidence but also all the other relevant circumstances. Secondly as laid down in Hindustan Antibiotics Ltd., v. The Workmen, (1967) 1 LLJ 114 =(AIR1967 SC 948) that Art. 136 is couched in widest terms, it is necessary for the Supreme Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principle of industrial law requiring elucidation and final decision by the Supreme Court. In our judgment this case is not of the type which falls within those classes of cases which according to the law laid down by this Court calls for any interference.
### Response:
0
### Explanation:
We do not think that any case has been made out for interference by this court on the point which the special leave was granted. In the first place the Tribunal has taken into consideration not only the oral evidence but also all the other relevant circumstances. Secondly as laid down in Hindustan Antibiotics Ltd., v. The Workmen, (1967) 1 LLJ 114 =(AIR1967 SC 948) that Art. 136 is couched in widest terms, it is necessary for the Supreme Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principle of industrial law requiring elucidation and final decision by the Supreme Court. In our judgment this case is not of the type which falls within those classes of cases which according to the law laid down by this Court calls for any interference.
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Secretary to Government of Karnataka and another Vs. V. Harishbabu
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by the Court regarding the filing of the award by the arbitrator. 20. From the aforesaid facts it unmistakably follows that no notice, whether in writing or orally, was ever issued by the Court to the appellant regarding the filing of the award in the Court to the appellant regarding the filing of the ward in the Court so as to enable it to file objections, if any, seeking the setting aside of the award. Notice of the petition filed by the respondent under Section 14/17 of the Act with the prayers as noticed above, cannot be construed as a notice of the filing of the award. We are unable to agree with the learned Counsel for the respondent that the filing of the copy of the signed award along with the petition should be deemed to be by an implied authority of the arbitrator and notice of that petition be deemed to be a notice issued by the Court under Section 14(2) of the Act. Neither there is a factual foundation for such an argument nor is it even otherwise tenable in law in the established facts of this case when the notice of the petition did not even indicate that a signed copy of the award had been filed in the court and in the petition also there is not a whisper that a copy of the award was being filed along with the petition let alone under the authority of the arbitrator. Keeping in view the nature of the prayers made in the petition (supra), it is futile to argue that the notice of the petition be deemed to be a notice from the court to the effect that the award had been filed in the Court. 21. The maximum that can be said in favour of the respondent is that on 13-7-1993, after the original award had been filed by the arbitrator on 24-6-1993 in the Court and the additional Government Pleader who was present on behalf of the appellant was directed to file his objections to the memo filed by the respondent seeking the award to be made a rule of the court, that a notice of the filing of the award would be deemed to have been issued to him by the court on that date. Therefore, the date of communication of the information about the filing of the award from the court could only be 13-7-1993 and no earlier date. The appellant was directed, through the Additional Government Pleader, to file his objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file ay objections by the due date. The omission of by the due date. The omission of the appellant to file objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file any objections to the memo, however, could not justify the order of the trial Court making the award a rule of the court and directing a decree to be drawn up in terms of the award, when admittedly the period of 30 days as envisaged by Article 119(b) of the Limitation Act, which had commenced on 13-7-1993 had not expired on 31-7-1993. We also do not find any merit in the submission of the learned Counsel for the respondent that the endorsement made by the Government Pleader on 24-6-1993 on the award which was then filed by the arbitrator in the court would amount to a notice under section 14(2) of the Act. The endorsement made by the Additional Government Pleader on 24-6-1993 can at best be construed as a notice issued by the arbitrator under Section 14(1) of the Act and such a notice, as we have already observed, is not a substitute for a notice which is mandatorily required to be issued by the Court and served upon the parties regarding the filing of the award under Section 14(2) of the Act. The trial Court, therefore, fell in error in opining that "admittedly he has not filed any objections within 30 days from the date of the filing of award by the respondent No. 3 before this Court and there are no other impediments as such to deny the relief sought for by the petitioner". The period of limitation, for filing objections to the award as we have already noticed, does not commence from the date of filing of the award by the arbitrator in the court and that period would only commence from the date of service of the notice issued by the court under Section 14(2) of the Act. The High Court also fell in error in observing that the appellant could not be heard to say that he had no knowledge of the filing of the award in the Court prior to 13-7-1993 on the ground that "the Additional Government Pleader representing respondents 1 and 2 before the Court below had taken notice of the filing of the award by the arbitrator on 24-6-1993". There is nothing on the record to show that any such notice was issued by the Court regarding the filing of the award. The endorsement made by the Additional Government Pleader on the award which was later on filed by the arbitrator in the court, did not relieve the court of its mandatory obligation to issue the notice, orally or in writing, to the appellant or its counsel to file the objections, if any, to the award. The endorsement made by the Additional Government Pleader is of no consequence insofar as the issuance of notice by the Court under Section 14(2) is concerned. Computing the period of 30 days with effect from 13-7-93, no award could be made a rule of the Court before the expiry of the period of 30 days from that date. Not filing of any objections to the memo by 31-7-93, could not take away the statutory right of the appellants to file objections to the award within a period of 30 days commencing from 13-7-1993.
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1[ds]15. In view of the settled law and our discussion above, our answer to the question posed in the opening part of the judgment is that the period of limitation for filing objections seeking the setting aside of an arbitration award commences from the date of service of the notice issued by the Court upon the parties regarding the filing of the award under Section14(2) of the Act. Such a notice need not be in writing but what is essential is that the notice or intimation or communication of the filing of the award must be issued by the Court to the parties and served upon the parties concerned. Date of service of a notice issued by the arbitrator under Section 14(1) of the Act or the date of obtaining an endorsement on the award by the arbitrator from the party concerned is irrelevant for determining the question of Limitation for filing objections under Article 119(b) of. It is not disputed that after the learned arbitrator filed the original award in the court on 24-6-93, no notice of the filing of that award was issued by the court for service upon the appellant or the other respondents20. From the aforesaid facts it unmistakably follows that no notice, whether in writing or orally, was ever issued by the Court to the appellant regarding the filing of the award in the Court to the appellant regarding the filing of the ward in the Court so as to enable it to file objections, if any, seeking the setting aside of the award. Notice of the petition filed by the respondent under Section 14/17 of the Act with the prayers as noticed above, cannot be construed as a notice of the filing of the award. We are unable to agree with the learned Counsel for the respondent that the filing of the copy of the signed award along with the petition should be deemed to be by an implied authority of the arbitrator and notice of that petition be deemed to be a notice issued by the Court under Section 14(2) of the Act. Neither there is a factual foundation for such an argument nor is it even otherwise tenable in law in the established facts of this case when the notice of the petition did not even indicate that a signed copy of the award had been filed in the court and in the petition also there is not a whisper that a copy of the award was being filed along with the petition let alone under the authority of the arbitrator. Keeping in view the nature of the prayers made in the petition (supra), it is futile to argue that the notice of the petition be deemed to be a notice from the court to the effect that the award had been filed in the Court21. The maximum that can be said in favour of the respondent is that on 13-7-1993, after the original award had been filed by the arbitrator on 24-6-1993 in the Court and the additional Government Pleader who was present on behalf of the appellant was directed to file his objections to the memo filed by the respondent seeking the award to be made a rule of the court, that a notice of the filing of the award would be deemed to have been issued to him by the court on that date. Therefore, the date of communication of the information about the filing of the award from the court could only be 13-7-1993 and no earlier date. The appellant was directed, through the Additional Government Pleader, to file his objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file ay objections by the due date. The omission of by the due date. The omission of the appellant to file objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file any objections to the memo, however, could not justify the order of the trial Court making the award a rule of the court and directing a decree to be drawn up in terms of the award, when admittedly the period of 30 days as envisaged by Article 119(b) ofthe Limitation Act,which had commenced on 13-7-1993 had not expired on 31-7-1993. We also do not find any merit in the submission of the learned Counsel for the respondent that the endorsement made by the Government Pleader on 24-6-1993 on the award which was then filed by the arbitrator in the court would amount to a notice under section 14(2) of the Act. The endorsement made by the Additional Government Pleader on 24-6-1993 can at best be construed as a notice issued by the arbitrator under Section 14(1) of the Act and such a notice, as we have already observed, is not a substitute for a notice which is mandatorily required to be issued by the Court and served upon the parties regarding the filing of the award under Section 14(2) of the Act. The trial Court, therefore, fell in error in opining that "admittedly he has not filed any objections within 30 days from the date of the filing of award by the respondent No. 3 before this Court and there are no other impediments as such to deny the relief sought for by the petitioner". The period of limitation, for filing objections to the award as we have already noticed, does not commence from the date of filing of the award by the arbitrator in the court and that period would only commence from the date of service of the notice issued by the court under Section 14(2) of the Act. The High Court also fell in error in observing that the appellant could not be heard to say that he had no knowledge of the filing of the award in the Court prior to 13-7-1993 on the ground that "the Additional Government Pleader representing respondents 1 and 2 before the Court below had taken notice of the filing of the award by the arbitrator on 24-6-1993". There is nothing on the record to show that any such notice was issued by the Court regarding the filing of the award. The endorsement made by the Additional Government Pleader on the award which was later on filed by the arbitrator in the court, did not relieve the court of its mandatory obligation to issue the notice, orally or in writing, to the appellant or its counsel to file the objections, if any, to the award. The endorsement made by the Additional Government Pleader is of no consequence insofar as the issuance of notice by the Court under Section 14(2) is concerned. Computing the period of 30 days with effect from 13-7-93, no award could be made a rule of the Court before the expiry of the period of 30 days from that date. Not filing of any objections to the memo by 31-7-93, could not take away the statutory right of the appellants to file objections to the award within a period of 30 days commencing from 13-7-1993.
| 1 | 5,082 | 1,279 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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by the Court regarding the filing of the award by the arbitrator. 20. From the aforesaid facts it unmistakably follows that no notice, whether in writing or orally, was ever issued by the Court to the appellant regarding the filing of the award in the Court to the appellant regarding the filing of the ward in the Court so as to enable it to file objections, if any, seeking the setting aside of the award. Notice of the petition filed by the respondent under Section 14/17 of the Act with the prayers as noticed above, cannot be construed as a notice of the filing of the award. We are unable to agree with the learned Counsel for the respondent that the filing of the copy of the signed award along with the petition should be deemed to be by an implied authority of the arbitrator and notice of that petition be deemed to be a notice issued by the Court under Section 14(2) of the Act. Neither there is a factual foundation for such an argument nor is it even otherwise tenable in law in the established facts of this case when the notice of the petition did not even indicate that a signed copy of the award had been filed in the court and in the petition also there is not a whisper that a copy of the award was being filed along with the petition let alone under the authority of the arbitrator. Keeping in view the nature of the prayers made in the petition (supra), it is futile to argue that the notice of the petition be deemed to be a notice from the court to the effect that the award had been filed in the Court. 21. The maximum that can be said in favour of the respondent is that on 13-7-1993, after the original award had been filed by the arbitrator on 24-6-1993 in the Court and the additional Government Pleader who was present on behalf of the appellant was directed to file his objections to the memo filed by the respondent seeking the award to be made a rule of the court, that a notice of the filing of the award would be deemed to have been issued to him by the court on that date. Therefore, the date of communication of the information about the filing of the award from the court could only be 13-7-1993 and no earlier date. The appellant was directed, through the Additional Government Pleader, to file his objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file ay objections by the due date. The omission of by the due date. The omission of the appellant to file objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file any objections to the memo, however, could not justify the order of the trial Court making the award a rule of the court and directing a decree to be drawn up in terms of the award, when admittedly the period of 30 days as envisaged by Article 119(b) of the Limitation Act, which had commenced on 13-7-1993 had not expired on 31-7-1993. We also do not find any merit in the submission of the learned Counsel for the respondent that the endorsement made by the Government Pleader on 24-6-1993 on the award which was then filed by the arbitrator in the court would amount to a notice under section 14(2) of the Act. The endorsement made by the Additional Government Pleader on 24-6-1993 can at best be construed as a notice issued by the arbitrator under Section 14(1) of the Act and such a notice, as we have already observed, is not a substitute for a notice which is mandatorily required to be issued by the Court and served upon the parties regarding the filing of the award under Section 14(2) of the Act. The trial Court, therefore, fell in error in opining that "admittedly he has not filed any objections within 30 days from the date of the filing of award by the respondent No. 3 before this Court and there are no other impediments as such to deny the relief sought for by the petitioner". The period of limitation, for filing objections to the award as we have already noticed, does not commence from the date of filing of the award by the arbitrator in the court and that period would only commence from the date of service of the notice issued by the court under Section 14(2) of the Act. The High Court also fell in error in observing that the appellant could not be heard to say that he had no knowledge of the filing of the award in the Court prior to 13-7-1993 on the ground that "the Additional Government Pleader representing respondents 1 and 2 before the Court below had taken notice of the filing of the award by the arbitrator on 24-6-1993". There is nothing on the record to show that any such notice was issued by the Court regarding the filing of the award. The endorsement made by the Additional Government Pleader on the award which was later on filed by the arbitrator in the court, did not relieve the court of its mandatory obligation to issue the notice, orally or in writing, to the appellant or its counsel to file the objections, if any, to the award. The endorsement made by the Additional Government Pleader is of no consequence insofar as the issuance of notice by the Court under Section 14(2) is concerned. Computing the period of 30 days with effect from 13-7-93, no award could be made a rule of the Court before the expiry of the period of 30 days from that date. Not filing of any objections to the memo by 31-7-93, could not take away the statutory right of the appellants to file objections to the award within a period of 30 days commencing from 13-7-1993.
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that award was issued by the court for service upon the appellant or the other respondents20. From the aforesaid facts it unmistakably follows that no notice, whether in writing or orally, was ever issued by the Court to the appellant regarding the filing of the award in the Court to the appellant regarding the filing of the ward in the Court so as to enable it to file objections, if any, seeking the setting aside of the award. Notice of the petition filed by the respondent under Section 14/17 of the Act with the prayers as noticed above, cannot be construed as a notice of the filing of the award. We are unable to agree with the learned Counsel for the respondent that the filing of the copy of the signed award along with the petition should be deemed to be by an implied authority of the arbitrator and notice of that petition be deemed to be a notice issued by the Court under Section 14(2) of the Act. Neither there is a factual foundation for such an argument nor is it even otherwise tenable in law in the established facts of this case when the notice of the petition did not even indicate that a signed copy of the award had been filed in the court and in the petition also there is not a whisper that a copy of the award was being filed along with the petition let alone under the authority of the arbitrator. Keeping in view the nature of the prayers made in the petition (supra), it is futile to argue that the notice of the petition be deemed to be a notice from the court to the effect that the award had been filed in the Court21. The maximum that can be said in favour of the respondent is that on 13-7-1993, after the original award had been filed by the arbitrator on 24-6-1993 in the Court and the additional Government Pleader who was present on behalf of the appellant was directed to file his objections to the memo filed by the respondent seeking the award to be made a rule of the court, that a notice of the filing of the award would be deemed to have been issued to him by the court on that date. Therefore, the date of communication of the information about the filing of the award from the court could only be 13-7-1993 and no earlier date. The appellant was directed, through the Additional Government Pleader, to file his objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file ay objections by the due date. The omission of by the due date. The omission of the appellant to file objections to the memo filed by the respondent by 31-7-1993 but the appellant did not file any objections to the memo, however, could not justify the order of the trial Court making the award a rule of the court and directing a decree to be drawn up in terms of the award, when admittedly the period of 30 days as envisaged by Article 119(b) ofthe Limitation Act,which had commenced on 13-7-1993 had not expired on 31-7-1993. We also do not find any merit in the submission of the learned Counsel for the respondent that the endorsement made by the Government Pleader on 24-6-1993 on the award which was then filed by the arbitrator in the court would amount to a notice under section 14(2) of the Act. The endorsement made by the Additional Government Pleader on 24-6-1993 can at best be construed as a notice issued by the arbitrator under Section 14(1) of the Act and such a notice, as we have already observed, is not a substitute for a notice which is mandatorily required to be issued by the Court and served upon the parties regarding the filing of the award under Section 14(2) of the Act. The trial Court, therefore, fell in error in opining that "admittedly he has not filed any objections within 30 days from the date of the filing of award by the respondent No. 3 before this Court and there are no other impediments as such to deny the relief sought for by the petitioner". The period of limitation, for filing objections to the award as we have already noticed, does not commence from the date of filing of the award by the arbitrator in the court and that period would only commence from the date of service of the notice issued by the court under Section 14(2) of the Act. The High Court also fell in error in observing that the appellant could not be heard to say that he had no knowledge of the filing of the award in the Court prior to 13-7-1993 on the ground that "the Additional Government Pleader representing respondents 1 and 2 before the Court below had taken notice of the filing of the award by the arbitrator on 24-6-1993". There is nothing on the record to show that any such notice was issued by the Court regarding the filing of the award. The endorsement made by the Additional Government Pleader on the award which was later on filed by the arbitrator in the court, did not relieve the court of its mandatory obligation to issue the notice, orally or in writing, to the appellant or its counsel to file the objections, if any, to the award. The endorsement made by the Additional Government Pleader is of no consequence insofar as the issuance of notice by the Court under Section 14(2) is concerned. Computing the period of 30 days with effect from 13-7-93, no award could be made a rule of the Court before the expiry of the period of 30 days from that date. Not filing of any objections to the memo by 31-7-93, could not take away the statutory right of the appellants to file objections to the award within a period of 30 days commencing from 13-7-1993.
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Srinivas Gopikishen Badruka Vs. State of Andhra Pradesh
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to it by the Indian Contract Act, 1872. Section 182 of the Contract Act defines "agent" thus :"An agent is a person employed to do any act for another or to represent another in dealings with third persons3. It is contended on behalf of the appellant that the definition in the Contract Act cannot be imported into the Sales Tax Act. But no reason is given in support of the contention and, therefore, we cannot accept it. What we have to see then is whether under the tripartite agreement upon which reliance is placed on behalf of the appellant it could be said that the appellant was employed by the company to do some act for or on its behalf or to represent it in its dealings with others. In the preamble of the agreement it is clearly stated that the company had agreed to appoint the appellant as its agent, to pay the balance of the purchase price and to take delivery of the castor seed purchased for the company and store on the companys behalf, on certain terms and conditions. Thus, apart from the express recital therein that the appellant was to be the agent of the company it clearly employed the appellant for taking delivery of the castor seed and storing it with itself. We may mention that apart from taking delivery of the castor seed the appellant was given authority to act on behalf of the company and raise moneys by hypothecating or pledging the goods in their custody and for paying the purchase price and taking delivery of the goods on their behalf. No doubt, the agreement does contain numerous terms which would show that the appellant was to advance money to the company and was thus to be the companys financier. But that was not the only relationship contemplated between the parties. In addition to being a financier the appellant also became an agent of the company.It is, however, contended on behalf of the appellant that unless a person is appointed an agent to buy on behalf of the principal he cannot be regarded as a dealer within the meaning of section 18 of the Hyderabad General Sales Tax Act. In support of the argument reliance was placed on the decision in Firm Raghubar Dayal v. State of U.P. (A.I.R. 1955 All. 653 .). This was a case under the U.P. Sales Tax Act and the decision turns on the definition of the word "dealer" as contained in section 2 of that Act. The explanation to section 2(c) of the Act provides as follows :"Explanation 1. - The agent of a person resident outside Uttar Pradesh who carries on the business of buying or selling goods in Uttar Pradesh on behalf of such person shall, in respect of such business, be deemed to be a dealer for the purposes of this Act."4. Since the explanation specifically provides that the agent must have the authority not only to sell but also to buy on behalf of the principal the High Court held that the existence of such authority is essential for bringing in an agent within the ambit of the word "dealer" as defined in the Act. The word "dealer" is defined thus in section 2(e) of the Hyderabad General Sales Tax Act, 1950 :"Dealer means any person, local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members."5. It does not contain any deeming provision of the kind that is in section 2 of the U.P. Sales Tax Act. The only deeming provision is that contained in section 18. There is nothing in section 18 which requires that for an agent to be regarded as a dealer he must have authority to buy on behalf of the principal.Reliance was then placed upon the decision of this Court in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta ([1959] S.C.R. 551, 562; 9 S.T.C. 428.). That was a case under the Bengal Finance (Sales Tax) Act, 1941 (Ben. VI of 1941). There, the word "dealer" was defined thus :"Dealer means any person who carries on the business of selling goods in the State of West Bengal and includes the Government ............Explanation 2. - A factor, a broker, a commission agent, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer;Explanation 3. - The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer; ........"6. In view of the fact that one of the clauses of the agreement between the agent and the non-resident principal was that the agent shall, under no circumstances whatsoever, make or purport to make or hold himself out as empowered to make, on behalf of the principal any contract or contracts for the purchase or supply of any goods manufactured by the principal, this Court held that the agent in question was not a dealer against whom assessment of sales tax could be made in respect of the principals transactions. The case is thus distinguishable. There is thus no doubt whatsoever that the appellant firm was not merely a financier of the company but also its agent during the years in question. It, therefore, falls squarely within the ambit of section 18 of the Hyderabad General Sales Tax Act and the Sales Tax Authorities were justified in making the assessments against it.
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0[ds]3. It is contended on behalf of the appellant that the definition in the Contract Act cannot be imported into the Sales Tax Act.But no reason is given in support of the contention and, therefore, we cannot accept it. What we have to see then is whether under the tripartite agreement upon which reliance is placed on behalf of the appellant it could be said that the appellant was employed by the company to do some act for or on its behalf or to represent it in its dealings with others. In the preamble of the agreement it is clearly stated that the company had agreed to appoint the appellant as its agent, to pay the balance of the purchase price and to take delivery of the castor seed purchased for the company and store on the companys behalf, on certain terms and conditions. Thus, apart from the express recital therein that the appellant was to be the agent of the company it clearly employed the appellant for taking delivery of the castor seed and storing it with itself. We may mention that apart from taking delivery of the castor seed the appellant was given authority to act on behalf of the company and raise moneys by hypothecating or pledging the goods in their custody and for paying the purchase price and taking delivery of the goods on their behalf. No doubt, the agreement does contain numerous terms which would show that the appellant was to advance money to the company and was thus to be the companys financier. But that was not the only relationship contemplated between the parties. In addition to being a financier the appellant also became an agent of the company.It is, however, contended on behalf of the appellant that unless a person is appointed an agent to buy on behalf of the principal he cannot be regarded as a dealer within the meaning of section 18 of the Hyderabad General Sales Tax Act. In support of the argument reliance was placed on the decision in Firm Raghubar Dayal v. State of U.P. (A.I.R. 1955 All. 653 .). This was a case under the U.P. Sales Tax Act and the decision turns on the definition of the word "dealer" as contained in section 2 of that Act. The explanation to section 2(c) of the Act provides as follows :"Explanation 1.The agent of a person resident outside Uttar Pradesh who carries on the business of buying or selling goods in Uttar Pradesh on behalf of such person shall, in respect of such business, be deemed to be a dealer for the purposes of this Act."4. Since the explanation specifically provides that the agent must have the authority not only to sell but also to buy on behalf of the principal the High Court held that the existence of such authority is essential for bringing in an agent within the ambit of the word "dealer" as defined in the Act. The word "dealer" is defined thus in section 2(e) of the Hyderabad General Sales Tax Act, 1950 :"Dealer means any person, local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members."5. It does not contain any deeming provision of the kind that is in section 2 of the U.P. Sales Tax Act. The only deeming provision is that contained in section 18. There is nothing in section 18 which requires that for an agent to be regarded as a dealer he must have authority to buy on behalf of the principal.Reliance was then placed upon the decision of this Court in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta ([1959] S.C.R. 551, 562; 9 S.T.C. 428.). That was a case under the Bengal Finance (Sales Tax) Act, 1941 (Ben. VI of 1941). There, the word "dealer" was defined thus :"Dealer means any person who carries on the business of selling goods in the State of West Bengal and includes the Government ............Explanation 2.A factor, a broker, a commission agent, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer;Explanation 3.The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer; ........"6. In view of the fact that one of the clauses of the agreement between the agent and theprincipal was that the agent shall, under no circumstances whatsoever, make or purport to make or hold himself out as empowered to make, on behalf of the principal any contract or contracts for the purchase or supply of any goods manufactured by the principal, this Court held that the agent in question was not a dealer against whom assessment of sales tax could be made in respect of the principals transactions. The case is thus distinguishable. There is thus no doubt whatsoever that the appellant firm was not merely a financier of the company but also its agent during the years in question. It, therefore, falls squarely within the ambit of section 18 of the Hyderabad General Sales Tax Act and the Sales Tax Authorities were justified in making the assessments against it.
| 0 | 1,965 | 1,072 |
### 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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to it by the Indian Contract Act, 1872. Section 182 of the Contract Act defines "agent" thus :"An agent is a person employed to do any act for another or to represent another in dealings with third persons3. It is contended on behalf of the appellant that the definition in the Contract Act cannot be imported into the Sales Tax Act. But no reason is given in support of the contention and, therefore, we cannot accept it. What we have to see then is whether under the tripartite agreement upon which reliance is placed on behalf of the appellant it could be said that the appellant was employed by the company to do some act for or on its behalf or to represent it in its dealings with others. In the preamble of the agreement it is clearly stated that the company had agreed to appoint the appellant as its agent, to pay the balance of the purchase price and to take delivery of the castor seed purchased for the company and store on the companys behalf, on certain terms and conditions. Thus, apart from the express recital therein that the appellant was to be the agent of the company it clearly employed the appellant for taking delivery of the castor seed and storing it with itself. We may mention that apart from taking delivery of the castor seed the appellant was given authority to act on behalf of the company and raise moneys by hypothecating or pledging the goods in their custody and for paying the purchase price and taking delivery of the goods on their behalf. No doubt, the agreement does contain numerous terms which would show that the appellant was to advance money to the company and was thus to be the companys financier. But that was not the only relationship contemplated between the parties. In addition to being a financier the appellant also became an agent of the company.It is, however, contended on behalf of the appellant that unless a person is appointed an agent to buy on behalf of the principal he cannot be regarded as a dealer within the meaning of section 18 of the Hyderabad General Sales Tax Act. In support of the argument reliance was placed on the decision in Firm Raghubar Dayal v. State of U.P. (A.I.R. 1955 All. 653 .). This was a case under the U.P. Sales Tax Act and the decision turns on the definition of the word "dealer" as contained in section 2 of that Act. The explanation to section 2(c) of the Act provides as follows :"Explanation 1. - The agent of a person resident outside Uttar Pradesh who carries on the business of buying or selling goods in Uttar Pradesh on behalf of such person shall, in respect of such business, be deemed to be a dealer for the purposes of this Act."4. Since the explanation specifically provides that the agent must have the authority not only to sell but also to buy on behalf of the principal the High Court held that the existence of such authority is essential for bringing in an agent within the ambit of the word "dealer" as defined in the Act. The word "dealer" is defined thus in section 2(e) of the Hyderabad General Sales Tax Act, 1950 :"Dealer means any person, local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members."5. It does not contain any deeming provision of the kind that is in section 2 of the U.P. Sales Tax Act. The only deeming provision is that contained in section 18. There is nothing in section 18 which requires that for an agent to be regarded as a dealer he must have authority to buy on behalf of the principal.Reliance was then placed upon the decision of this Court in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta ([1959] S.C.R. 551, 562; 9 S.T.C. 428.). That was a case under the Bengal Finance (Sales Tax) Act, 1941 (Ben. VI of 1941). There, the word "dealer" was defined thus :"Dealer means any person who carries on the business of selling goods in the State of West Bengal and includes the Government ............Explanation 2. - A factor, a broker, a commission agent, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer;Explanation 3. - The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer; ........"6. In view of the fact that one of the clauses of the agreement between the agent and the non-resident principal was that the agent shall, under no circumstances whatsoever, make or purport to make or hold himself out as empowered to make, on behalf of the principal any contract or contracts for the purchase or supply of any goods manufactured by the principal, this Court held that the agent in question was not a dealer against whom assessment of sales tax could be made in respect of the principals transactions. The case is thus distinguishable. There is thus no doubt whatsoever that the appellant firm was not merely a financier of the company but also its agent during the years in question. It, therefore, falls squarely within the ambit of section 18 of the Hyderabad General Sales Tax Act and the Sales Tax Authorities were justified in making the assessments against it.
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3. It is contended on behalf of the appellant that the definition in the Contract Act cannot be imported into the Sales Tax Act.But no reason is given in support of the contention and, therefore, we cannot accept it. What we have to see then is whether under the tripartite agreement upon which reliance is placed on behalf of the appellant it could be said that the appellant was employed by the company to do some act for or on its behalf or to represent it in its dealings with others. In the preamble of the agreement it is clearly stated that the company had agreed to appoint the appellant as its agent, to pay the balance of the purchase price and to take delivery of the castor seed purchased for the company and store on the companys behalf, on certain terms and conditions. Thus, apart from the express recital therein that the appellant was to be the agent of the company it clearly employed the appellant for taking delivery of the castor seed and storing it with itself. We may mention that apart from taking delivery of the castor seed the appellant was given authority to act on behalf of the company and raise moneys by hypothecating or pledging the goods in their custody and for paying the purchase price and taking delivery of the goods on their behalf. No doubt, the agreement does contain numerous terms which would show that the appellant was to advance money to the company and was thus to be the companys financier. But that was not the only relationship contemplated between the parties. In addition to being a financier the appellant also became an agent of the company.It is, however, contended on behalf of the appellant that unless a person is appointed an agent to buy on behalf of the principal he cannot be regarded as a dealer within the meaning of section 18 of the Hyderabad General Sales Tax Act. In support of the argument reliance was placed on the decision in Firm Raghubar Dayal v. State of U.P. (A.I.R. 1955 All. 653 .). This was a case under the U.P. Sales Tax Act and the decision turns on the definition of the word "dealer" as contained in section 2 of that Act. The explanation to section 2(c) of the Act provides as follows :"Explanation 1.The agent of a person resident outside Uttar Pradesh who carries on the business of buying or selling goods in Uttar Pradesh on behalf of such person shall, in respect of such business, be deemed to be a dealer for the purposes of this Act."4. Since the explanation specifically provides that the agent must have the authority not only to sell but also to buy on behalf of the principal the High Court held that the existence of such authority is essential for bringing in an agent within the ambit of the word "dealer" as defined in the Act. The word "dealer" is defined thus in section 2(e) of the Hyderabad General Sales Tax Act, 1950 :"Dealer means any person, local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members."5. It does not contain any deeming provision of the kind that is in section 2 of the U.P. Sales Tax Act. The only deeming provision is that contained in section 18. There is nothing in section 18 which requires that for an agent to be regarded as a dealer he must have authority to buy on behalf of the principal.Reliance was then placed upon the decision of this Court in Mahadayal Premchandra v. Commercial Tax Officer, Calcutta ([1959] S.C.R. 551, 562; 9 S.T.C. 428.). That was a case under the Bengal Finance (Sales Tax) Act, 1941 (Ben. VI of 1941). There, the word "dealer" was defined thus :"Dealer means any person who carries on the business of selling goods in the State of West Bengal and includes the Government ............Explanation 2.A factor, a broker, a commission agent, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of selling goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer;Explanation 3.The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer; ........"6. In view of the fact that one of the clauses of the agreement between the agent and theprincipal was that the agent shall, under no circumstances whatsoever, make or purport to make or hold himself out as empowered to make, on behalf of the principal any contract or contracts for the purchase or supply of any goods manufactured by the principal, this Court held that the agent in question was not a dealer against whom assessment of sales tax could be made in respect of the principals transactions. The case is thus distinguishable. There is thus no doubt whatsoever that the appellant firm was not merely a financier of the company but also its agent during the years in question. It, therefore, falls squarely within the ambit of section 18 of the Hyderabad General Sales Tax Act and the Sales Tax Authorities were justified in making the assessments against it.
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Chairman, Ramappa Gundappa Sahakari Samyukta Besava Sangha Limited & Another Vs. State of Mysore & Others
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covered by the present appeal,and is "in supersession of all orders issued so far in connection with the disposal of galper lands".7. As pointed out above, adjoining owners enjoyed a weightage in getting the lands for seasonal cultivation under the 1931 resolution of Government but that stood superseded by the 1953 memorandum of Government which give a list of priorities in regard to persons who should be eligible for getting leases of tank-bed lands. Local landless backward class people forming themselves into co-operative societies were given the highest preference, and we have no doubt that they form a class which the State may well encourage. It is not only open to the State but may be desirable that local landless backward class members should be given special advantages more so when they form themselves into co-operatives, and we see a fulfilment of the Directive Principles of State Policy in Part IV of the Constitution in this Government memorandum of December, 1953. However, we are not concerned with any aspect of this Government memorandum except to this extent that it has been passed in supersession of Ex.D of 1931.8. The sole point that falls for decision is whether the High Court right in holding that the Government resolution of 1931 confers on the writ petitioners (respondents 4 and 5 herein) a right "to cultivate the lands in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same and on the fulfilment of the other terms incorporated in Ex.D". Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyones rights. At the most, the 1931 decision of Government raised hopes and expectations. What is more, the right to cultivate was precarious and seasonal depending on the recession of the water level during summer, and it is impossible to predicate the vesting of any right in the adjoining owners on the strength of Ex.D. In short, the writ petitioners had no right to property created in their favour by Ex.D of 1931, and in its absence the writ petition itself was unsustainable.9. If every policy statement or direction of Government regarding disposal of State Government were construed as irreversibly creating right to property in prospective beneficiaries strange consequences would follow. An administrative decision of the last century would hold Government prisoner perpetually and deny it the power to alter its policies and programmes, according to its understanding of the needs of the people. Moreoever, how can an interest in immovable property and that in perpetuity - be created by a mere Government proceeding? Nor could the Bombay Land Revenue Code confer such right in real property, merely from the circumstance that seasonal cultivation was permitted by the State to be carried on by neighbouring landholders. The provisions of the Code pressed into inept service by the contesting respondents cannot by statutory operation transform an ephemeral permission to cultivate Government land into a permanent estate in it. For we cannot predicate a tenure, much less an unlimited tenure here, as contemplated in Section 68. It is a curious social sidelight of this erroneous construction that even if tank beds and reservoirs get silted up by ploughing up the top soil the State will be helpless to prevent it even though the area is part of the irrigation project.10. The village of Gudas, in which the property is situate, eventually became a part of the State of Karnataka on the reorganisation of States on November 1, 1956. It was thereafter that on August 24, 1967 the appellant co-operative society was registered, professedly formed by landless labourers belonging to backward communities in Gudas village. The society made an application for the grant of the lands in dispute on lease and the Tehsildar did grant it on September 4, 1967. The term of the said lease was 10 years, and the lease itself was executed on September 15, 1967. Thereupon the adjacent owners, who would have enjoyed a preferential right under Ex.D, moved the Government for cancellation of the lease granted by the Tehsildar in favour of the appellant and for the grant of the lease in their favour. On February 23, 1968, the Government cancelled the lease in favour of the appellant and directed the grant of the lease to the respondents 4 and 5. When this cancellation of the appellants lease came to its notice. Government was moved for reconsideration of its policy decision and for regrant of the lease in the societys favour. The social policy of Government swayed it in favour of the appellant society and on July 17, 1968, the impugned order was passed by the first respondent the Government directing the Divisional Commissioner to grant the lease of the lands in question in favour of the appellant society. It was this order which was successfully challenged in the High Court by the present respondents 4 and 5.11. We have already observed that neither the 1931 resolution nor the 1953 memorandum creates rights in any person. Government has laid down its policy from time to time in these resolution. Since respondents 4 and 5 could not found a claim for a grant of lease or a right in property based on Ex.D, the allowance of the writ petition by the High Court was clearly wrong. Nor are we disposed to think that we should decide the rights of the appellant before us and in any case the period of the lease granted in favour of the appellant society has expired.
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1[ds]7. As pointed out above, adjoining owners enjoyed a weightage in getting the lands for seasonal cultivation under the 1931 resolution of Government but that stood superseded by the 1953 memorandum of Government which give a list of priorities in regard to persons who should be eligible for getting leases oflands. Local landless backward class people forming themselves intosocieties were given the highest preference, and we have no doubt that they form a class which the State may well encourage. It is not only open to the State but may be desirable that local landless backward class members should be given special advantages more so when they form themselves intoand we see a fulfilment of the Directive Principles of State Policy in Part IV of the Constitution in this Government memorandum of December, 1953. However, we are not concerned with any aspect of this Government memorandum except to this extent that it has been passed in supersession of Ex.D of 1931.8. The sole point that falls for decision is whether the High Court right in holding that the Government resolution of 1931 confers on the writ petitioners (respondents 4 and 5 herein) a right "to cultivate the lands in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same and on the fulfilment of the other terms incorporated in Ex.D". Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyones rights. At the most, the 1931 decision of Government raised hopes and expectations. What is more, the right to cultivate was precarious and seasonal depending on the recession of the water level during summer, and it is impossible to predicate the vesting of any right in the adjoining owners on the strength of Ex.D. In short, the writ petitioners had no right to property created in their favour by Ex.D of 1931, and in its absence the writ petition itself was unsustainable.9. If every policy statement or direction of Government regarding disposal of State Government were construed as irreversibly creating right to property in prospective beneficiaries strange consequences would follow. An administrative decision of the last century would hold Government prisoner perpetually and deny it the power to alter its policies and programmes, according to its understanding of the needs of the people. Moreoever, how can an interest in immovable property and that in perpetuitybe created by a mere Government proceeding? Nor could the Bombay Land Revenue Code confer such right in real property, merely from the circumstance that seasonal cultivation was permitted by the State to be carried on by neighbouring landholders. The provisions of the Code pressed into inept service by the contesting respondents cannot by statutory operation transform an ephemeral permission to cultivate Government land into a permanent estate in it. For we cannot predicate a tenure, much less an unlimited tenure here, as contemplated in Section 68. It is a curious social sidelight of this erroneous construction that even if tank beds and reservoirs get silted up by ploughing up the top soil the State will be helpless to prevent it even though the area is part of the irrigation project.10. The village of Gudas, in which the property is situate, eventually became a part of the State of Karnataka on the reorganisation of States on November 1, 1956. It was thereafter that on August 24, 1967 the appellantsociety was registered, professedly formed by landless labourers belonging to backward communities in Gudas village. The society made an application for the grant of the lands in dispute on lease and the Tehsildar did grant it on September 4, 1967. The term of the said lease was 10 years, and the lease itself was executed on September 15, 1967. Thereupon the adjacent owners, who would have enjoyed a preferential right under Ex.D, moved the Government for cancellation of the lease granted by the Tehsildar in favour of the appellant and for the grant of the lease in their favour. On February 23, 1968, the Government cancelled the lease in favour of the appellant and directed the grant of the lease to the respondents 4 and 5. When this cancellation of the appellants lease came to its notice. Government was moved for reconsideration of its policy decision and for regrant of the lease in the societys favour. The social policy of Government swayed it in favour of the appellant society and on July 17, 1968, the impugned order was passed by the first respondent the Government directing the Divisional Commissioner to grant the lease of the lands in question in favour of the appellant society. It was this order which was successfully challenged in the High Court by the present respondents 4 and 5.11. We have already observed that neither the 1931 resolution nor the 1953 memorandum creates rights in any person. Government has laid down its policy from time to time in these resolution. Since respondents 4 and 5 could not found a claim for a grant of lease or a right in property based on Ex.D, the allowance of the writ petition by the High Court was clearly wrong. Nor are we disposed to think that we should decide the rights of the appellant before us and in any case the period of the lease granted in favour of the appellant society has expired.
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### 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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covered by the present appeal,and is "in supersession of all orders issued so far in connection with the disposal of galper lands".7. As pointed out above, adjoining owners enjoyed a weightage in getting the lands for seasonal cultivation under the 1931 resolution of Government but that stood superseded by the 1953 memorandum of Government which give a list of priorities in regard to persons who should be eligible for getting leases of tank-bed lands. Local landless backward class people forming themselves into co-operative societies were given the highest preference, and we have no doubt that they form a class which the State may well encourage. It is not only open to the State but may be desirable that local landless backward class members should be given special advantages more so when they form themselves into co-operatives, and we see a fulfilment of the Directive Principles of State Policy in Part IV of the Constitution in this Government memorandum of December, 1953. However, we are not concerned with any aspect of this Government memorandum except to this extent that it has been passed in supersession of Ex.D of 1931.8. The sole point that falls for decision is whether the High Court right in holding that the Government resolution of 1931 confers on the writ petitioners (respondents 4 and 5 herein) a right "to cultivate the lands in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same and on the fulfilment of the other terms incorporated in Ex.D". Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyones rights. At the most, the 1931 decision of Government raised hopes and expectations. What is more, the right to cultivate was precarious and seasonal depending on the recession of the water level during summer, and it is impossible to predicate the vesting of any right in the adjoining owners on the strength of Ex.D. In short, the writ petitioners had no right to property created in their favour by Ex.D of 1931, and in its absence the writ petition itself was unsustainable.9. If every policy statement or direction of Government regarding disposal of State Government were construed as irreversibly creating right to property in prospective beneficiaries strange consequences would follow. An administrative decision of the last century would hold Government prisoner perpetually and deny it the power to alter its policies and programmes, according to its understanding of the needs of the people. Moreoever, how can an interest in immovable property and that in perpetuity - be created by a mere Government proceeding? Nor could the Bombay Land Revenue Code confer such right in real property, merely from the circumstance that seasonal cultivation was permitted by the State to be carried on by neighbouring landholders. The provisions of the Code pressed into inept service by the contesting respondents cannot by statutory operation transform an ephemeral permission to cultivate Government land into a permanent estate in it. For we cannot predicate a tenure, much less an unlimited tenure here, as contemplated in Section 68. It is a curious social sidelight of this erroneous construction that even if tank beds and reservoirs get silted up by ploughing up the top soil the State will be helpless to prevent it even though the area is part of the irrigation project.10. The village of Gudas, in which the property is situate, eventually became a part of the State of Karnataka on the reorganisation of States on November 1, 1956. It was thereafter that on August 24, 1967 the appellant co-operative society was registered, professedly formed by landless labourers belonging to backward communities in Gudas village. The society made an application for the grant of the lands in dispute on lease and the Tehsildar did grant it on September 4, 1967. The term of the said lease was 10 years, and the lease itself was executed on September 15, 1967. Thereupon the adjacent owners, who would have enjoyed a preferential right under Ex.D, moved the Government for cancellation of the lease granted by the Tehsildar in favour of the appellant and for the grant of the lease in their favour. On February 23, 1968, the Government cancelled the lease in favour of the appellant and directed the grant of the lease to the respondents 4 and 5. When this cancellation of the appellants lease came to its notice. Government was moved for reconsideration of its policy decision and for regrant of the lease in the societys favour. The social policy of Government swayed it in favour of the appellant society and on July 17, 1968, the impugned order was passed by the first respondent the Government directing the Divisional Commissioner to grant the lease of the lands in question in favour of the appellant society. It was this order which was successfully challenged in the High Court by the present respondents 4 and 5.11. We have already observed that neither the 1931 resolution nor the 1953 memorandum creates rights in any person. Government has laid down its policy from time to time in these resolution. Since respondents 4 and 5 could not found a claim for a grant of lease or a right in property based on Ex.D, the allowance of the writ petition by the High Court was clearly wrong. Nor are we disposed to think that we should decide the rights of the appellant before us and in any case the period of the lease granted in favour of the appellant society has expired.
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### Explanation:
7. As pointed out above, adjoining owners enjoyed a weightage in getting the lands for seasonal cultivation under the 1931 resolution of Government but that stood superseded by the 1953 memorandum of Government which give a list of priorities in regard to persons who should be eligible for getting leases oflands. Local landless backward class people forming themselves intosocieties were given the highest preference, and we have no doubt that they form a class which the State may well encourage. It is not only open to the State but may be desirable that local landless backward class members should be given special advantages more so when they form themselves intoand we see a fulfilment of the Directive Principles of State Policy in Part IV of the Constitution in this Government memorandum of December, 1953. However, we are not concerned with any aspect of this Government memorandum except to this extent that it has been passed in supersession of Ex.D of 1931.8. The sole point that falls for decision is whether the High Court right in holding that the Government resolution of 1931 confers on the writ petitioners (respondents 4 and 5 herein) a right "to cultivate the lands in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same and on the fulfilment of the other terms incorporated in Ex.D". Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyones rights. At the most, the 1931 decision of Government raised hopes and expectations. What is more, the right to cultivate was precarious and seasonal depending on the recession of the water level during summer, and it is impossible to predicate the vesting of any right in the adjoining owners on the strength of Ex.D. In short, the writ petitioners had no right to property created in their favour by Ex.D of 1931, and in its absence the writ petition itself was unsustainable.9. If every policy statement or direction of Government regarding disposal of State Government were construed as irreversibly creating right to property in prospective beneficiaries strange consequences would follow. An administrative decision of the last century would hold Government prisoner perpetually and deny it the power to alter its policies and programmes, according to its understanding of the needs of the people. Moreoever, how can an interest in immovable property and that in perpetuitybe created by a mere Government proceeding? Nor could the Bombay Land Revenue Code confer such right in real property, merely from the circumstance that seasonal cultivation was permitted by the State to be carried on by neighbouring landholders. The provisions of the Code pressed into inept service by the contesting respondents cannot by statutory operation transform an ephemeral permission to cultivate Government land into a permanent estate in it. For we cannot predicate a tenure, much less an unlimited tenure here, as contemplated in Section 68. It is a curious social sidelight of this erroneous construction that even if tank beds and reservoirs get silted up by ploughing up the top soil the State will be helpless to prevent it even though the area is part of the irrigation project.10. The village of Gudas, in which the property is situate, eventually became a part of the State of Karnataka on the reorganisation of States on November 1, 1956. It was thereafter that on August 24, 1967 the appellantsociety was registered, professedly formed by landless labourers belonging to backward communities in Gudas village. The society made an application for the grant of the lands in dispute on lease and the Tehsildar did grant it on September 4, 1967. The term of the said lease was 10 years, and the lease itself was executed on September 15, 1967. Thereupon the adjacent owners, who would have enjoyed a preferential right under Ex.D, moved the Government for cancellation of the lease granted by the Tehsildar in favour of the appellant and for the grant of the lease in their favour. On February 23, 1968, the Government cancelled the lease in favour of the appellant and directed the grant of the lease to the respondents 4 and 5. When this cancellation of the appellants lease came to its notice. Government was moved for reconsideration of its policy decision and for regrant of the lease in the societys favour. The social policy of Government swayed it in favour of the appellant society and on July 17, 1968, the impugned order was passed by the first respondent the Government directing the Divisional Commissioner to grant the lease of the lands in question in favour of the appellant society. It was this order which was successfully challenged in the High Court by the present respondents 4 and 5.11. We have already observed that neither the 1931 resolution nor the 1953 memorandum creates rights in any person. Government has laid down its policy from time to time in these resolution. Since respondents 4 and 5 could not found a claim for a grant of lease or a right in property based on Ex.D, the allowance of the writ petition by the High Court was clearly wrong. Nor are we disposed to think that we should decide the rights of the appellant before us and in any case the period of the lease granted in favour of the appellant society has expired.
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Ghanshyam Das Shrivastava Vs. State Of Madhya Pradesh
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appellant was paid the subsistence allowance at any time before the disposal of the hearing before the Enquiry Officer, and whether on account of non-payment of the subsistence allowance he was unable to appear before the Enquiry Officer." The High Court was directed to dispose of the writ petition in the light of its finding on the question.3. In the High Court the appellant and the respondent filed affidavits in support of their case on the question. On a perusal of the entire evidence on record the High Court answered the question against the appellant. This appeal by special leave is directed against the order of the High Court dismissing the writ petition.4. The High Court has found the following facts : The hearing of the case started before the Enquiry Officer at Jagdalpur on February, 1965. The case was heard on February 10, 11 and March 13, 1965. It appears that a part of the evidence for the Government was recorded on those dates. On March, 20, 1965, the appellant received Rs. 312/- as subsistence allowance for the months of November and December, 1964 and January, 1965. Further evidence for the Government was recorded on April 3, 6 and 15, 1965. A second payment of Rs. 213/- as subsistence allowance was made to the appellant on May 13, 1965. As already stated, the Enquiry Officer submitted his report to the Government on May 28, 1965. These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.
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1[ds]These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.
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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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appellant was paid the subsistence allowance at any time before the disposal of the hearing before the Enquiry Officer, and whether on account of non-payment of the subsistence allowance he was unable to appear before the Enquiry Officer." The High Court was directed to dispose of the writ petition in the light of its finding on the question.3. In the High Court the appellant and the respondent filed affidavits in support of their case on the question. On a perusal of the entire evidence on record the High Court answered the question against the appellant. This appeal by special leave is directed against the order of the High Court dismissing the writ petition.4. The High Court has found the following facts : The hearing of the case started before the Enquiry Officer at Jagdalpur on February, 1965. The case was heard on February 10, 11 and March 13, 1965. It appears that a part of the evidence for the Government was recorded on those dates. On March, 20, 1965, the appellant received Rs. 312/- as subsistence allowance for the months of November and December, 1964 and January, 1965. Further evidence for the Government was recorded on April 3, 6 and 15, 1965. A second payment of Rs. 213/- as subsistence allowance was made to the appellant on May 13, 1965. As already stated, the Enquiry Officer submitted his report to the Government on May 28, 1965. These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.
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These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.
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Hoechst Pharmaceuticals Ltd. And Another Etc Vs. State Of Bihar And Others
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cake sold inside the State and. deducting only the value of the copra relatable to the oil sold inside the State. It was contended by the assessee that in the calculation of the net turnover, he was entitled to include the total value of the oil sold by him, both inside and outside the State, and deduct therefrom the total value of the copra purchased by him and further, under the overriding provision of s. 26 of the Act, he was entitled to have the value of the oil sold outside the State deducted. The main controversy between the parties centered around the method of computation of the net turnover. The contention advanced by the assessee was rejected by the High Court, which limited the deduction to purchase of copra relatable to the sales inside the State. In affirming that decision, this Court observed that so far as sales of coconut oil outside the State were concerned, they were, as it were, by reason of s. 26 of the Act read in conjunction with Art. 286, taken out of the purview of the Act, and that they had the effect of setting at naught and obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provision contained in the charging section, s. 3, and the provisions contained in r. 20(2) and other provisions which were incidental to the process of levying such tax. The aforementioned passage relied upon cannot be read out of context in which it appears and if so read, it is hardly of any assistance to the appellants.In the penultimate paragraph in Fernandezs case, supra, the Court after laying down that the non-obstante clause in s. 26 had the effect of taking sales in the course of inter-State trade and outside the State out of the purview of the Act with the result that the dealer was not required nor entitled to include them in computation e of the turnover liable to tax thereunder, observed:"This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding pro vision enacted in the Act, as above."34. The decision in Fernandezs case, supra, is therefore clearly an authority for the proposition that the- State Legislature notwithstanding Art. 286 of the Constitution while making a law under Entry 54 of List II of the Seventh Schedule can, for purposes of the registration of a dealer and submission of returns of sales tax, include the transactions covered by Art. 286 of the Constitution That being so, the constitutional validity of sub-s. (1) of s. 5 of the Act which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge, in addition to the tax payable by him, is not assailable. So long as sales in the course of inter-State trade and commerce or sales out side the State and sales in the course of import into, or export out of the territory of India are not taxed, there is nothing to prevent the State Legislature while making a law for the levy of a surcharge under Entry 54 of List II of the Seventh Schedule to take into account the total turnover of the dealer within the State and provide, as has been done by sub-s. (1) of s. 5 of the Act, that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year, he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10 per centum of the tax as may be provided. The liability to pay a surcharge is not on the gross turnover including the transactions covered by Art. 286 but is only on inside sales an d the surcharge is sought to be levied on dealers who have a position of economic superiority. The definition of gross turnover in s. 2(j) of the Act is adopted not for the purpose of bringing to surcharge inter- State sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying obje ct is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liabil ity sought to be imposed must be pertinent to that territorial connection: State of Bombay v. R.M.D. Chamarbaugwala(1), The Tata Iron &Steel Co. Ltd. v. State of Bihar(2), and International Tourist Corporation etc. etc. v. State of Haryan a & Ors.(3) The gross turnover of a dealer is taken into account in sub-s. (1) of s. 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. Fo
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0[ds]We find it difficult to subscribe to the proposition advanced on behalf of the appellants that merely because of the opening words of Art. 246(3) of the Constitution "Subject to clauses (I) and (2)" and the non-obstante clause in Art. . 246(1) Notwithstanding . anything in clauses (2) and (3)", sub-s. (3) of s. 5 of the Act which provides that no dealer shall be entitled to collect the amount of surcharge must be struck down as ultra vires the State Legislature inasmuch as it is in consistent with paragraph 21 of the drugs (Price Control) order issued by the Central Government under sub-s. (I) of s. 3 of the Essential Commodities Act which enables the manufacturer or producer of drugs to pass on the liability to pay sales tax to the consumer. The submission is that sub-s. (3) of s. 5 of the Act enacted by the State Legislature while making a law under Entry 54 of List II of the Seventh Schedule which interdicts that a dealer liable to pay surcharge under sub-s. (1) of s. 5 of the Act shall not be entitled to collect it from the purchaser, directly trenches upon Union power to legislate with respect to fixation of price of essential commodities under Entry 33 of List Ill. It is said that if both are valid, then ex hypothesi the law made by Parliament must prevail and the State law protanto must yield. We are afraid, the contention cannot prevail in view of the well accepted principles,The words "Notwithstanding anything contained in clauses (2) and (3) in Art. 246 (l) and the words "Subject to clauses A (I.) and (2)" in Art. 246(3) lay down the principle of Federal supremacy viz. that in case of inevitable conflict between Union and State powers, the Union power as enumerated in List T shall prevail over the State power as enumerated in List II and III. and in case of overlapping between List 11 and III, the 13 former shall prevail. But the principle of Federal supremacy laid down in Art. 246 of the Constitution cannot be resorted to unless there is an "irreconcilable" conflict between the Entries in the Union and State Lists. In the case of a seeming conflict between the Entries in the two lists, the Entries should be read together without giving a narrow and restricted sense to either of them. Secondly, an attempt should be made to see whether the two Entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language or the Union Legislative List a meaning which, if less wide than it night in another context bear, is yet one that can properly be given to it and equally giving to the language of the State Legislative List a meaning which it can properly bear. The non-obstante clause in Art. 246(l) must operate only if such reconciliation should prove impossible. Thirdly, no question of conflict between the two lists will arise if the impugned legislation, by the application of the doctrine of "pith and substance" appears to fall exclusively under one list, and the encroachment upon anoth er list is onlywe have endeavoured so far, thequestion raised as to the constitutional validity ofsub-s. (3) of s. S of the Acthas to be determined by application of the rule of the pith and substance whether or not theof the impugned legislation was competently enacted under Art. 246, and therefore the question of repugnancy under Art. 254 was not a matter inissue. The submission put forward on behalf of the appellants however is that there is direct collision and/or irreconciliable conflict between sub-s. (3) of s. 5 of the Act which is relatable to Entry 54 of List II of the Seventh Schedule and paragraph 21 of the Control order issued by the Central Government under sub-s. (1) of s. 3 of the Essential Commodities Act which is relatable t o Entry 33 of List III. It is sought to be argued that the words "a law made by Parliament which Parliament is competent to enact" must be construed to mean not only a law made by Parliament with respect to one of the matters enumerated in the Concurrent List but they are wide enough to include a law made by Parliament with respect to any of the matters enumerated in the Union List. The argument was put in this form. Inconsidering whether a State law is repugnant to a law made by Parliament, two questions arise: First, is the law made by Parliament viz. the Essential Commodities Act, a valid law ? For, if it is not, no question of repugnancy to a State law can arise. If however it is a valid law, the question as to what constitutes repugnancy directly arises. The Second question turns on a construction of the words "a law made by Parliament which Parliament is competent to enact" in Art. 254(1).Strong reliance is placed on the judgment of the High Court of Australia in Clyde Engineering Company Limited v. Cowburn(1) and to a passage in Australian Federal Constitutional Law by Colin Howard, 2nd edn. at pp. 34-35. Our attention is also drawn to two other decisions of the High Court of Australia: Ex parte Mc Lean(2) and Stock Motor Ploughs Limited v. Forsyth.(3) The decision in Clyde Engineering Companys cases, supra, is an authority for the proposition that two enactments may be inconsistent where one statute takes away the rights conferred by the other although obedience to each one of them may be possible without disobeying the other. The contention is that paragraph 21 of the Control order confers a right on the manufacturers and producers of medicines a nd drugs to pass on the liability for sales tax while sub-s. (3) of s. 5 of the Act prohibits such manufacturers or producers from passing on such liability. The argument cannot prevail for two obvious reasons viz (1) Entry 54 of List II is a tax entry and therefore there is no question of repugnancy between sub-s. (3) of s. 5 of the Act which is a law made by the State Legislature for the imposition of tax on sale or purchase of goods relatable to Entry 54 and paragraph 21 o f the Control order issued by the Central Government under sub-s. (1) of s. 3 of the Essential Commodities Act which is a law made by Parliament relatable to Entry 33 of List III. And (2). The question of repugnancy can only arise in connection with the subjects enumerated in the Concurrent List as regards which both the Union and the State Legislatures have concurrent powers so that the question of conflict between laws made by both Legislatures relating to the same subject mayis no ground whatever for holding that sub-s. (3) of s. 5 of the Act is arbitrary or irrational or that it treats unequals as equals, or that it imposes a disproportionate burden on a certain class of dealers. It must be remembered that sub-s. (1) of s. 5 of the Act provides for the levy of a surcharge having a gross turnover of Rs 5 lakhs or more in a year at a uniform rate of 10 per centum of the tax payable by them, irrespective whether they are dealers in essential commodities or not. A surcharge in its true nature and character is nothing but a higher rate of tax to raise revenue for general purposes. The levy of surcharge under sub-s. (1) of s. 5 of the Act falls uniformly on a certain class of dealers depending upon their capacity to bear the additional burden. From a fiscal point of view, a sales tax on a manufacturer or producer involves the complication of price-structure. It is apt to increase the price of the commodity, and tends to be shifted forward to the consumer. The manufacturers or producers often formulate the ir prices in terms of certain profit targets. Their initial response would be to raise prices by the full amount of the tax. Where the conventional mark-up leaves substantial unrealized profits, successful tax shifting is possible regardless of the nature of the tax. If, on the other hand, the tax cannot be passed on to the consumer, it must be shifted backwards to ownerscontention that sub-s. (3) of s. 5 of the Act imposes an unreasonable restriction upon the freedom of trade guaranteed under Art. 19 (1) (g) of the Constitution proceeds on the basis that sales tax being essentially an indirect tax, it was not competent for the Legislature to make a provision prohibiting the dealer from collecting the amount of surcharge cannot prevail. It is urged that the surcharge does not retain its avowed character as sales tax but in its true gature and character is virtually a tax on income, by reason of the limitation contained in sub-s. (3) of s. 5 of the Act. We are not impressed with the argument. Merely because a dealer falling within the class defined under sub-s. (1) of s. 5 of the Act is prevented from collecting the surcharge recovered from him, does not affect the competence of the State Legislature to make a provision like sub-s. (3) of s. 5 of the Act nor does it become a tax on his income. It is not doubt true that a sales tax is, according to the accepted notions, intended to be passed on to the buyer, and the provisions authorising an d regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the Legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales t ax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not effect the competence of the legislature: see: The Tata Iron &Steel Co. Ltd. v. The State of Bihar(1): M/s. J.K. Jute Mills Co. Ltd. v. The State of Uttar Pradesh &Anr.(2) 5. Kodar v. State of Kerala.(3) The contention based on the Art. 19 (1) (g) cannot therefore be sustained.There was quite some discussion at the Bar as to whether the assent of the President is justiciable. It was submitted that since not only sub-s. (1) of s. 5 of the Act which provides for the levy of a surcharge on dealers having a gross turnover of Rs. 5 lakhs in a year but also sub-s. (3) thereof which interdicts that no such dealer shall be entitled to recover the amount of surcharge collected from him, are both relatable to Entry 54 of List II of the Seventh Schedule, there was no occasion for the Governor to have referred the Bill under Art. 200 to the President for his assent. It is some what strange that this argument should be advanced for the first time after a lapse of 30 years of the inauguration of the Constitution. Immediate provocation for this argument appears to be an obiter dictum of Lord Diplock while delivering the judgment of the Judicial Committee in Teh Cheng Poh @, Char Meh v. Public Prosecutor, Malaysia(1) that "the Courts are not powerless when there is a failure to exercise the power of revocation of a Proclamation of Emergency "issued by the Ruler of Malaysia under s. 47 (2) of the Internal Security Act. The ultimate decision of the Privy Council was that since by virtue of s 47 (2) of that Act the security area proclamation remained lawful until revoked b y resolutions of both Houses of Parliament or by the Ruler, it could not be deemed to lapse because the conditions upon which the Ruler had exercised his discretion to make the Proclamation were no longer in existence. That being so, the decision in Teh Cheng Pohs case, supra, is not an authority for the proposition that the assent of the President is justiciable nor can it be spelled out that that Court can enquire into the reasons why the Bill was reserved by the Governor under Art. 20 0 for the assent of the President nor whether the President applied his mind to the question whether there was repugnancy between the Bill reserved for his consideration and received his assent under Art. 254 (2).The constitutional position of a Governor is clearly defined. The Governor is made a component part of the Legislature of a State under Art. 168 because every Bill passed by the State Legislation has to be reserved for the assent of the Governor under Art. 200. Under t hat Article, the Governor can adopt one of the three courses, namely: (1) He may give his assent to it, in which case the Bill becomes a law; or (2) He may except in the case of a Money Bill withhold his assent therefrom, in which cases the Bill falls through unless the procedure indicated in the first proviso is followed i. e. return the Bill to the Assembly for consideration with a message, or (3) He may "on the advice of the Council of Ministers" reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Art. 201. The first proviso to Art. 200 deals with a situation where the Governor is bound to give his assent and the Bill is reconsidered and passed by the Assembly. The second proviso to that Article makes the reservation for the Consideration of the President obligatory where the Bill would, "if it becomes law, dergoate from the powers of the High Court". Under Art. 201, when a Bill is reserved by the Governor for the consideration of the President, the President can adopt two courses, namely: (1) He may give his assent to it in which case again the Bill becomes a law; or (2) He may except where the Bill is not a Money Bill, direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such message as is mentioned in the first proviso to Art. 200. When a Bill is so reserved by the President, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration. Thus, it is clear that a Bill passed by the State Assembly may become law if the Governor gives his assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the PresidentThere is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President. A Bill which attracts Art. 254 (2) or Art. 304 (b) where it is introduced or moved in the Legislative Assembly of a State without the previous sanction of the President or which attracted Art. 31 (3) as it was then in force, or falling under the second proviso to Art. 200 has necessarily to be reserved for the consideration of the President. There may also be a Bill passed by the State legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any furture complication Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent. This aspect of the matter, as the law now stands, is not open to scrutiny by the courts. In the instant case, the Finance Bill which ultimately became the Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt that it was necessary to reserve it for the assent of the President. We have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent.There still remains the contention that for the purpose of levying surcharge it is impermissible to take into account the method of computation of gross turnover, the turnover representing sales in the course of inter-State trade and outside the State and sales in the course of export out of India. It is urged that the non-obstante clause in s. 7 of the Act has the effect of taking these transactions out of the purview of the Act with the result that a dealer is not required nor is he entitled to include them in the calculations of his turnover liable to tax thereunder. The submission is that sub-s. (1) of s. 5 of the Act is ultra vires the State Legislature in so far as for purposes of levying the charge, the incidence of liability of a dealer to pay such surcharge depends on his gross turnover as defined in s. 2 (j) of the Act. In support of the contention, reliance was placed on the following passage in the judgment of this Court in A. V. Fernandez v. State ofis a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.The submission appears to proceed on a misapprehension of the principles laid down in Fernandezs case,understand the ratio deducible in Fernandezs case, supra, a few facts have to be stated. The business of the assessee in that case consisted in the purchase of copra, manufacture of coconut oil and cake therefrom and sale of oil and cake to parties inside the State and sale of oil to parties outside the State. In 1951, the Travancore-Cochin General Sales Tax Act, 1125 was amended by addition of s. 26 which incorporated the ban of Art. 286 of the Constitution and was in pari materia with s. 7 of the Act. For the year 1951-52, the Sales Tax officer assessed the assessee to sales tax on a net assessable turnover by taking the value of the whole of the copra purchased by him, adding thereto the respective values of the oil and cake sold inside the State and. deducting only the value of the copra relatable to the oil sold inside the State. It was contended by the assessee that in the calculation of the net turnover, he was entitled to include the total value of the oil sold by him, both inside and outside the State, and deduct therefrom the total value of the copra purchased by him and further, under the overriding provision of s. 26 of the Act, he was entitled to have the value of the oil sold outside the State deducted. The main controversy between the parties centered around the method of computation of the net turnover. The contention advanced by the assessee was rejected by the High Court, which limited the deduction to purchase of copra relatable to the sales inside the State. In affirming that decision, this Court observed that so far as sales of coconut oil outside the State were concerned, they were, as it were, by reason of s. 26 of the Act read in conjunction with Art. 286, taken out of the purview of the Act, and that they had the effect of setting at naught and obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provision contained in the charging section, s. 3, and the provisions contained in r. 20(2) and other provisions which were incidental to the process of levying such tax. The aforementioned passage relied upon cannot be read out of context in which it appears and if so read, it is hardly of any assistance to the appellants.In the penultimate paragraph in Fernandezs case, supra, the Court after laying down that the non-obstante clause in s. 26 had the effect of taking sales in the course of inter-State trade and outside the State out of the purview of the Act with the result that the dealer was not required nor entitled to include them in computation e of the turnover liable to tax thereunder,position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding pro vision enacted in the Act, asdecision in Fernandezs case, supra, is therefore clearly an authority for the proposition that the- State Legislature notwithstanding Art. 286 of the Constitution while making a law under Entry 54 of List II of the Seventh Schedule can, for purposes of the registration of a dealer and submission of returns of sales tax, include the transactions covered by Art. 286 of the Constitution That being so, the constitutional validity of sub-s. (1) of s. 5 of the Act which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge, in addition to the tax payable by him, is not assailable. So long as sales in the course of inter-State trade and commerce or sales out side the State and sales in the course of import into, or export out of the territory of India are not taxed, there is nothing to prevent the State Legislature while making a law for the levy of a surcharge under Entry 54 of List II of the Seventh Schedule to take into account the total turnover of the dealer within the State and provide, as has been done by sub-s. (1) of s. 5 of the Act, that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year, he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10 per centum of the tax as may be provided. The liability to pay a surcharge is not on the gross turnover including the transactions covered by Art. 286 but is only on inside sales an d the surcharge is sought to be levied on dealers who have a position of economic superiority. The definition of gross turnover in s. 2(j) of the Act is adopted not for the purpose of bringing to surcharge inter- State sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying obje ct is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liabil ity sought to be imposed must be pertinent to that territorial connection: State of Bombay v. R.M.D. Chamarbaugwala(1), The Tata Iron &Steel Co. Ltd. v. State of Bihar(2), and International Tourist Corporation etc. etc. v. State of Haryan a & Ors.(3) The gross turnover of a dealer is taken into account in sub-s. (1) of s. 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them.
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Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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cake sold inside the State and. deducting only the value of the copra relatable to the oil sold inside the State. It was contended by the assessee that in the calculation of the net turnover, he was entitled to include the total value of the oil sold by him, both inside and outside the State, and deduct therefrom the total value of the copra purchased by him and further, under the overriding provision of s. 26 of the Act, he was entitled to have the value of the oil sold outside the State deducted. The main controversy between the parties centered around the method of computation of the net turnover. The contention advanced by the assessee was rejected by the High Court, which limited the deduction to purchase of copra relatable to the sales inside the State. In affirming that decision, this Court observed that so far as sales of coconut oil outside the State were concerned, they were, as it were, by reason of s. 26 of the Act read in conjunction with Art. 286, taken out of the purview of the Act, and that they had the effect of setting at naught and obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provision contained in the charging section, s. 3, and the provisions contained in r. 20(2) and other provisions which were incidental to the process of levying such tax. The aforementioned passage relied upon cannot be read out of context in which it appears and if so read, it is hardly of any assistance to the appellants.In the penultimate paragraph in Fernandezs case, supra, the Court after laying down that the non-obstante clause in s. 26 had the effect of taking sales in the course of inter-State trade and outside the State out of the purview of the Act with the result that the dealer was not required nor entitled to include them in computation e of the turnover liable to tax thereunder, observed:"This position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding pro vision enacted in the Act, as above."34. The decision in Fernandezs case, supra, is therefore clearly an authority for the proposition that the- State Legislature notwithstanding Art. 286 of the Constitution while making a law under Entry 54 of List II of the Seventh Schedule can, for purposes of the registration of a dealer and submission of returns of sales tax, include the transactions covered by Art. 286 of the Constitution That being so, the constitutional validity of sub-s. (1) of s. 5 of the Act which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge, in addition to the tax payable by him, is not assailable. So long as sales in the course of inter-State trade and commerce or sales out side the State and sales in the course of import into, or export out of the territory of India are not taxed, there is nothing to prevent the State Legislature while making a law for the levy of a surcharge under Entry 54 of List II of the Seventh Schedule to take into account the total turnover of the dealer within the State and provide, as has been done by sub-s. (1) of s. 5 of the Act, that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year, he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10 per centum of the tax as may be provided. The liability to pay a surcharge is not on the gross turnover including the transactions covered by Art. 286 but is only on inside sales an d the surcharge is sought to be levied on dealers who have a position of economic superiority. The definition of gross turnover in s. 2(j) of the Act is adopted not for the purpose of bringing to surcharge inter- State sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying obje ct is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liabil ity sought to be imposed must be pertinent to that territorial connection: State of Bombay v. R.M.D. Chamarbaugwala(1), The Tata Iron &Steel Co. Ltd. v. State of Bihar(2), and International Tourist Corporation etc. etc. v. State of Haryan a & Ors.(3) The gross turnover of a dealer is taken into account in sub-s. (1) of s. 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. Fo
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respective values of the oil and cake sold inside the State and. deducting only the value of the copra relatable to the oil sold inside the State. It was contended by the assessee that in the calculation of the net turnover, he was entitled to include the total value of the oil sold by him, both inside and outside the State, and deduct therefrom the total value of the copra purchased by him and further, under the overriding provision of s. 26 of the Act, he was entitled to have the value of the oil sold outside the State deducted. The main controversy between the parties centered around the method of computation of the net turnover. The contention advanced by the assessee was rejected by the High Court, which limited the deduction to purchase of copra relatable to the sales inside the State. In affirming that decision, this Court observed that so far as sales of coconut oil outside the State were concerned, they were, as it were, by reason of s. 26 of the Act read in conjunction with Art. 286, taken out of the purview of the Act, and that they had the effect of setting at naught and obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provision contained in the charging section, s. 3, and the provisions contained in r. 20(2) and other provisions which were incidental to the process of levying such tax. The aforementioned passage relied upon cannot be read out of context in which it appears and if so read, it is hardly of any assistance to the appellants.In the penultimate paragraph in Fernandezs case, supra, the Court after laying down that the non-obstante clause in s. 26 had the effect of taking sales in the course of inter-State trade and outside the State out of the purview of the Act with the result that the dealer was not required nor entitled to include them in computation e of the turnover liable to tax thereunder,position is not at all affected by the provision with regard to registration and submissions of returns of the sales tax by the dealers under the Act. The legislature, in spite of its disability in the matter of the imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution, may for the purposes of the registration of a dealer and submission of the returns of sales tax include these transactions in the dealers turnover. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of Art. 286 of the Constitution and the corresponding pro vision enacted in the Act, asdecision in Fernandezs case, supra, is therefore clearly an authority for the proposition that the- State Legislature notwithstanding Art. 286 of the Constitution while making a law under Entry 54 of List II of the Seventh Schedule can, for purposes of the registration of a dealer and submission of returns of sales tax, include the transactions covered by Art. 286 of the Constitution That being so, the constitutional validity of sub-s. (1) of s. 5 of the Act which provides for the classification of dealers whose gross turnover during a year exceeds Rs. 5 lakhs for the purpose of levy of surcharge, in addition to the tax payable by him, is not assailable. So long as sales in the course of inter-State trade and commerce or sales out side the State and sales in the course of import into, or export out of the territory of India are not taxed, there is nothing to prevent the State Legislature while making a law for the levy of a surcharge under Entry 54 of List II of the Seventh Schedule to take into account the total turnover of the dealer within the State and provide, as has been done by sub-s. (1) of s. 5 of the Act, that if the gross turnover of such dealer exceeds Rs. 5 lakhs in a year, he shall, in addition to the tax, also pay a surcharge at such rate not exceeding 10 per centum of the tax as may be provided. The liability to pay a surcharge is not on the gross turnover including the transactions covered by Art. 286 but is only on inside sales an d the surcharge is sought to be levied on dealers who have a position of economic superiority. The definition of gross turnover in s. 2(j) of the Act is adopted not for the purpose of bringing to surcharge inter- State sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying obje ct is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liabil ity sought to be imposed must be pertinent to that territorial connection: State of Bombay v. R.M.D. Chamarbaugwala(1), The Tata Iron &Steel Co. Ltd. v. State of Bihar(2), and International Tourist Corporation etc. etc. v. State of Haryan a & Ors.(3) The gross turnover of a dealer is taken into account in sub-s. (1) of s. 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them.
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V. Tulasamma & Ors Vs. V. Sesha Reddi (Dead) By L. Rs
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mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:"(1) The Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the fema le has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.(2) Section 14(1) and the Explanation thereto have been. couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.(4) Sub-section (2) of s . 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into. an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act h ad been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may b e placed on the transferee."79. Applying the principles enunciated above to the facts of the present case, we find-"(i) that the properties in suit were allotted to the appellant Tulasumma on July 30, 1949 under a compromise certified by the Court;(ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into. force; and(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties."80. It is, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, there- fore, the case of the appellant would be taken out of the ambit of s. 14(2) and would fail squarely within s. 14 (1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956. Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a limited interest in setting aside the alienations made by her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law.81.
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1[ds]This being the position after marriage, it is manifest that the law enjoins a corresponding duty on the husband to maintain his wife and look after her comforts and to provide her food and raiments. It is well settled that under the Hindu Law the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband an wife. As the wife is in a sense a part of the body of her husband, she becomes co-owner of the property of her husband though in a subordinate sense. Although the right of maintenance does not per se create a legal charge on the property of her husband, yet the wife can enforce this right by moving the Court for passing a decree for maintenance by creating a charge. This right is available only so long as the wife continues to be chaste. Thus the position is that the right of maintenance may amount to a legal charge if such a charge is created either by an agreement between the parties or byare a number of authorities which have taken the view that even if the property is transferred and the transferee takes the property with notice of the right of the widow to be maintained out of the property, the purchaser takes the obligation to maintain the widow out of the property purchased and the wife or widow can follow the property in the hands of the purchaser for the limited purpose of hersump up, therefore, according to. Sastris interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts. to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husbands property though in a subordinate sense, i.e. the wife has no dominion over themight further mention that the Hindu womens right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Womens Right to Separate Maintenance and Residence Act, 1946--hereinafter to be referred to as the Act of 1946--which came into force on April 23, 1946. Thus there appears to be complete unanimity of the various schools of Hindu law on the important incidents and indicia of the Hindu womens right to maintenance which has now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existingon a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu womans right tothat a Hindu womans right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;(2) though the widows right to maintenance is not a right to property but it is undoubtedly pre-existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widows right to maintenance, the purchaser is legally bound to provide for her maintenance;(4) that the right to maintenance is undoubtedly a preexisting right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, there fore, a pre-existing right;(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for herthe light of the above decisions of this Court the following principles appear to be clear:(1) that the provisions of s. 14, of the 1956 Act must be liberally construed in order to advance the object of the Ac t which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;(2) it is manifestly clear that sub-s. (2) of s. 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badri Parshads case (supra).(3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the. spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession;(4) that sub-s. (2) of s. 14 is merely a proviso to. subs. (1) of s. 14 and has to be interpreted as a proviso and not-in a manner so as to destroy the effect of the mainhave given our anxious consideration. to the language of s. 1 4(1) &(2) and we feel that on a proper interpretation of s. 14(2) there does not appear to be any real inconsistency between s. 14(1), . the explanation thereto and sub-s. (2). To begin with, s. 14(1) does not limit the enlargement of the estate of a Hindu widow to any particular interest in the property. On the other hand the Explanation to s. 14(1) brings out the real purpose. of s. 14(1) by giving an exhaustive category of cases where principle of s. 14(1 ) has to operate, i.e. to cases where a Hindu female would get an absolute interest. The argument of the learned counsel for the appellant is that as the right of maintenance was a pre-existing right, any instrument or transaction by which the property was allotted to the appellant would not be a new transaction so as to create a new title but would be only in recognition of a pre-existing right, namely, the right of maintenance. On the other hand Mr. Natesan appearing for the respondents submitted that the object of the proviso was to. validate rather than disturb the past transactions which had 131aced certain restrictions or curbs on the power of a Hindu female and as the language of the proviso is very wide there is no warrant for not applying it to cases where pre-existing rights are concerned. In the alternative, Mr. Natesan argued that the Hindu womans right to maintenance is not a legal right. unless an actual charge is created in respect of the property and is, therefore not enforceable at law. It is, there fore, not correct to describe a claim of a Hindu females right to. maintenance simpliciter as a pre-existing right because all the necessary indicia of a legal right areconsidering various aspects of the matter we are inclined to agree with the contentions raised by Mr. Krishna Murthy Iyer appearing for the appellant. In the: first place, the appellants contention appears to be more in consonance with the spirit and object of the statute itself. Secondly, we have already pointed out that the claim of a Hindu female for maintenance is undoubtedly a pre-existing right and this has been So held not only by various Courts in India but also by the Judicial Committee of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the claim or the right to maintenance possessed by a Hindu female is really a substitute for a share which she would have got in the property of her husband. This being the position, where a Hindu female who. gets a share in her husbands property acquires an absolute interest by virtue of s. 14(1) of the Act, could it be intended by the legislature that in the same circumstances a Hindu female who could not get a share but has a right of maintenance would not get an absolute interest ? In other words, the position would be that the appellant would suffer because her husband had died prior to the Act of 1937. If the husband of the appellant had died after 1937, there could be no, dispute that the appellant would have got an absolute interest, because she was entitled to her share under the provisions of the Hindu Womens Right to Property Act, 1937. Furthermore, it may be necessary to study the language in which the Explanation to s. 14(1) and sub-s. (2) of s. 14 are couched. It would be seen that while the Explanation to s. 14( 1 ) clearly and expressly mentions "property acquired by a female Hindu" at a partition or in lieu of maintenance or arrears of maintenance there is no reference in sub-s. (2) at all to this particular mode of acquisition by a Hindu female which clearly indicates that the intention of the Parliament was to exclude the application of sub-s. (2) to, cases where the property has been acquired by a Hindu female. either at a partition or in lieu of maintenance etc. The Explanation is an inclusive definition and if the Parliament intended that everything that is mentioned in the Explanation should be covered by sub-s. (2) it should have expressly so stated in sub-s. (2). Again the language of sub-s. (2) clearly shows that it would apply only to such transactions which. are absolutely independent in nature and which are not in recognition of or in lieu of pre-existing rights. It appears from the Parliamentary Debates that when the Hindu Succession Bill, 1954, w as referred to a Joint Committee by the Rajya Sabha, in s. 14(2) which was clause 16(2) of the Draft Bill of the Joint Committee, the words mentioned were only gift or will. Thus the intention of the Parliament was to confine sub-s. (2) only to two transactions, namely a gift or a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. Subsequently, however, an amendment was propose d by one of the, members for adding other categories, namely, an instrument, decree, order or award which was accepted by the Government. This would show that the various terms, viz., gift, will, instrument, decree, order or award mentioned in s. 14(2) would have to. be read ejusdem generis so as refer to transactions where right is created for the first time in favour of the Hindu female. The intention of the Parliament in adding the other categories to sub-s. (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in s. 14(2), namely, gift, will, decree, order, award or m instrument which prescribes a restricted estate would not be disturbed and would continue to occupy the field covered by s. 14(2). This would be the position even if a Hindu male was to get the property by any of the modes mentioned in s. 14(2): he would also get only a restricted interest and, therefore, the Parliament thought that there was no warrant for making any distinction between a male or a female in this regard and both were, therefore, sought to bethe following propositions emerge from a detailed discussion of thisthat the widows claim to maintenance is undoubtedly a tangible right though not an absolute right to property so as to become a fresh source of title. The claim for maintenance can, however, be made a charge on the joint family properties, and even if the properties are sold with the notice of the Said charge, the sold properties will be burdened with the claim for maintenance;(2) that by virtue of the Hindu Womens Right to Property Act, 1937 the claim of the widow to maintenance has been crystallized into a full-fledged right and any property allotted to her in lieu of maintenance becomes property to which she has a limited interest which by virtue of the provisions of Act of 1956 is enlarged into an absolute title;(3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition of pre-existing rights but confers a fresh right or tide for the first time and while conferring the said title certain restrictions are placed by the grant or transfer. Where, .however, the grant is merely in re cognition or in implementation of a pre-existing right to claim maintenance, the case. falls beyond the purview of s. 14(2) and comes squarely within the explanation to s. 14we fully agree with the first part of the observations made by the learned Chief Justice, as he then was. that one of the basic concepts of Hindu Law is that a Hindu woman has right to be maintained by her husband or from her husbands property or the joint family property we respectfully disagree with his conclusion that even though this is the legal position yet the right to receive maintenance does not confer on her any right, title or interest in the property. It is true that the claim for maintenance is not an enforceable right but it is undoubtedly a pre-existing right, even though no charge is made on the properties which are liable for her maintenance. We also do not agree with the view of the learned Chief Justice that if the property is given to the widow in lieu of maintenance she will get only a restricted estate. In our opinion, the High Court of Andhra Pradesh has proceeded on wrong premises. Instead of acknowledging t he right of a Hindu woman to maintenance as a right to a right--or that matter a preexisting right---and then considering the effect of the subsequent transactions, the High Court has first presumed that the claim for maintenance is not a tangible right at all and, therefore, the question of a pre-existing right does not arise. This, as we have already pointed out, is against the consistent view taken by a large number of Courts for a very long period. Furthermore, this case does not appear to have noticed the previous Division Bench decision in Gadam Reddayyas case (supra) taking the contrary view, and on this ground alone the authority of this case is considerably weakened. At any rate, since we are satisfied that the claim of a Hindu woman for maintenance is a pre-existing right, any transaction which is in recognition or declaration of that right clearly falls beyond the purview of s. 14(2) of the 1956 Act and, therefore, this authority does not lay down the correct law. We, therefore, do not approve of the view taken in this case and overrule theregards the Madras High Court, the position appears to be almost the same. There also, while a single Judge took the same view as the Bombay High Court and held that s. 14(2) w as not applicable, the Division Bench of the Court in an appeal against the order of another Single Judge took the contrary view. In S. Kachupalaya Gurukal v. Subramania Gurukkal (supra) the Court seems to draw an artificial distinction between a claim of a widow for maintenance and a pre-existing right possessed by her. According to the High Court, while a claim for maintenance simpliciter. was not a right at all, the right to get a s hare in the husbands property under the Hindu Womens Right to, Property Act, 1937 was a pre-existing right. The Madras High Court appears to have fallen into an error by misconceiving the scope and extent of a Hindu womans right to maintenance. Secondly, it appears to have interpreted the proviso in such a manner as to destroy the effect of the main provision, namely, s. 14(1) and the explanation thereto, for which there can be no warrant in law. The decision of Natesan, J, in Gurunadham v. Sundrarajulu Chetty (supra) which had been affirmed by this judgment also, appears to have taken the same view and had fallen into the same error. Furthermore, the view of the learned Judge that on the interpretation given and the view taken by the Bombay High Court which we have accepted, s. 14 is intended to override lawful terms in contracts, bargains, bequests or gifts etc. is not correct, because the scope and area of sub-s. (2) of s. 14 is quite separate and defined. Such a sub-section applies only to such transactions as confer new right, title. or interest on the Hindu females. In such cases the titles created under sub-s. (2) are left in tact and s. 14(1) does not interfere with the titles so created under thosein short, these two, decisions suffer from the following legal infirmities: (i) the Madras High Court has not correctly or properly appreciated the nature and extent of the widows right to. maintenance: and (ii) the distinction drawn by the Court regarding the share given to the widow under the Hindu Womens Right to. Property Act allotted to her before the passing of the Act in lieu of maintenance is based on artificial grounds. In fact the Act of 1937 did not legislate anything new, but merely gave statutory recognition to the old Shastric Hindu Law by consolidating the same and clarifying the right of the widow which she already possessed in matter of succession under the, Hindu Law. This being the position, the Act of 1937 makes no difference. so far as the legal status of a widow in regard to her right to maintenance was concerned. The Act neither took away the: right of maintenance nor conferred the same; (iii) the Court appears to, have given an extended meaning to sub-s. (2) of s. 14 of the 1956 Act which has been undoubtedly enlarged so as to set at naught the express words in the Explanation to sub -s. (1) of s. 14 which expressly exclude the. property given to a widow in lieu of maintenance or at a partition from the ambit of sub-s. (1). In other words, such a property, according to the Explanation, is a property in which the widow would have undoubtedly a limited interest which by operation of law i.e. force of s. 14(1) would be enlarged into an absolute interest if the widow is in possession of the property on the date when the Act was passed; (iv) similarly the Court failed to notice that sub-s. (2) of s. 14 would apply only where a new right is created for the first time by virtue of a gift, will etc . or the like executed in favour of the widow in respect of which she had no prior interest in the property at all. For instance, a daughter is given a limited interest in presence of the widow. Here the daughter not being an heir in presence of the widow (before the Hindu Succession Act came into force) she had, no fight or share in the property, and if she was allotted some property under any instrument, a new and fresh right was created in her favour for the first time which she never possessed. Such a case would be squarely covered by s. 14(2) of theon a careful scrutiny and analysis of the authorities discussed above, the position seems to be that the view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, Punjab, Calcutta .and Kerala to the effect that the widows claim to maintenance, even though granted to her subject to certain restrictions, is covered by s. 14 (1) and not by sub-s. (2) is based on the followingThat the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property. Such a right can mature into a full-fledged one if it is charged on the property either by an agreement or by a decree. Even otherwise, where a family possesses property, the husband, or in case of his. death, his heirs are burdened with the obligation to maintain the widow and, therefore, the widows claim for maintenance is not an empty formality but a pre-existing right.(2) Section 14(2) which is in the nature of a proviso to s. 14(1) cannot be interpreted in a way so as to destroy the concept and defeat the purpose which; is sought to, be effectuated by s. 14(1) in conferring an absolute interest on the Hindu women and in doing away with what was hereto before known as the Hindu womens estate. The proviso will apply only to such cases which flow beyond the purview of the Explanation to s. 14(1).(3) That the proviso would not apply to any grant or transfer in favour of the widow hedged in by limitation or restrictions, where the grant is merely in recognition or declaration of a pre-existing right, it will apply only to such a case where a new right which the female did not possess at all is sought to be conferred on her under certain limitations or exceptions. In fact in such a case even if a conditional grant is made to a male, he would be bound by the condition imposed. The proviso wipes out the distinction between a male and a female in thiscontrary view taken by the Madras, Orissa, Andhra Pradesh, Allahabad and Jammu &Kashmir High Courts proceeds on the followingThat a widows claim to maintenance is merely an inchoate or incomplete right having no legal status, unless the widow gets a property in lieu of maintenance or unless a charge is created in a particular property the claim for maintenance cannot be legally enforced. Thus, where under a grant, compromise, transfer or a decree, a property is allotted to the widow in lieu of maintenance, it is not the recognition of any p re-existing right but it amounts to conferment of a new right for the first time which in fact did not exist before the said demise. This view is really based on the provisions of the Hindu Womens Right to Property Act, 1937, under which the widow has got the right to get a share of his son in lieu of partition and even otherwise she is entitled to her share in the joint Hindu family property on partition. These High Courts, therefore, seem to be of the opinion that in view of the provisions of the Hindu Womens Right to Property Act, the widow in claiming a share in the property has a pre-existing right which is recognised by law, namely, the Act of 1937. The same, however, cannot be said of a bare claim to maintenance which has not been recognised as a legal right and which can mature into a legally enforceable right only under a grant or demise. This view suffers from a serious fallacy, which is, based on a misconception of the true position of a Hindu widows claim for maintenance. It has been seen from. the discussion regarding the widows claim for maintenance and her status in family that under the pure Sastric Hindu Law the widow is almost a co-owner of the properties with her husband and even before the Act of 1937 she was entitled to the share of a son on the death o f her husband after partition according to some schools of Hindu Law. The Act of 1937 did not introduce any new right but merely gave a statutory recognition to the old Sastric Hindu Law on the subject. In this respect the Act of 1937 is very different from the Act of 1956, the latter of which has made a revolutionary change in the Hindu Law and has changed the entire complexion and concept of Hindu womens estate. In these circumstances, therefore, if the widows claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to dub this! right as flowing from the Act of 1937. The second fallacy in t his view is that the Court failed to consider that the. claim for maintenance is an important right which is granted to the widow under the Sastric Hindu Law which enjoins the husband to maintain his wife even if he has no, property. Where he has a property the widow has to be maintained from that property so much so that after the death of her husband any one who inherits that property takes the property subject to. the burden of maintaining the widow. Even where the property is transferred for payment of family debts and the transferee has the notice of the widows claim for maintenance, he has to discharge the burden of maintaining the widow from the property sold to him. Thus the nature and extent of the right of the widow to claim maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right comes into existence only if the property is allotted to the widow in lieu of maintenance and notreasoning given by the courts taking the contrary view is that sub-s. (2) being in the nature of a proviso to s. 14(1) all grants with conditions take the case out of s. 14(1). This, as we have already pointed out, is based on a wrong interpretation of the scope: and ambit of sub-s. (2) of s.the contrary view is in direct conflict with the observations made by this Court in the cases referred to above, where a grant in lieu of maintenance. of the widow has been interpreted as being in recognition of a pre-existing right so. as to take away the case from the ambit of sub-s.these reasons and those given hereto. before we choose to prefer the view taken by Palekar, J., in B-B. Patil v. Gangabai (supra) which appears to be more in consonance with the object and spirit of the 1956 Act. We, therefore, affirm and approve of the decisions of the Bombay High Court in B.B. Patil v. Gangabai; of the Andhra Pradesh High Court m Gadam Reddayya v. Varapula Venkataraju &Anr.;of the Mysore High Court in H. Venkanagouda v. Hanamanagouda; of the Patna High Court in Sumeshwar Mishra v. Swami Nath Tiwari; of the Punjab High Court in Smt. Sharbati Devi v. Pt. Hira Lal &Anr and Calcutta High Court in Sasadhar Chandra Dev v. Smt. Tara Sundari Dasi (supra) and disapprove the decisions of the Orissa High Court in Narayan Patra v. Tara Patrani; Andhra Pradesh High Court in Gopisetty Kondaiah v. Gunda Subbarayudu (supra); Madras High Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (supra) and Gurunadham v. Sundararaulu; of the Allahabad High. Court in Ram Jag Missir v. Director of Consolidation, U.P. and in Ajab Singh &Ors. v. Ram Singh &Ors. of the Jammu &Kashmir Highwould now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be statedThe Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the fema le has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.(2) Section 14(1) and the Explanation thereto have been. couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.(4) Sub-section (2) of s . 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into. an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act h ad been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may b e placed on thethe principles enunciated above to the facts of the present case, wethat the properties in suit were allotted to the appellant Tulasumma on July 30, 1949 under a compromise certified by the Court;(ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into. force; and(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in theis, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, there- fore, the case of the appellant would be taken out of the ambit of s. 14(2) and would fail squarely within s. 14 (1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956. Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a limited interest in setting aside the alienations made by her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law.
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mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:"(1) The Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the fema le has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.(2) Section 14(1) and the Explanation thereto have been. couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.(4) Sub-section (2) of s . 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into. an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act h ad been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may b e placed on the transferee."79. Applying the principles enunciated above to the facts of the present case, we find-"(i) that the properties in suit were allotted to the appellant Tulasumma on July 30, 1949 under a compromise certified by the Court;(ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into. force; and(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties."80. It is, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, there- fore, the case of the appellant would be taken out of the ambit of s. 14(2) and would fail squarely within s. 14 (1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956. Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a limited interest in setting aside the alienations made by her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law.81.
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we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be statedThe Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the fema le has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.(2) Section 14(1) and the Explanation thereto have been. couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.(4) Sub-section (2) of s . 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into. an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act h ad been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser with- out any right or title.(7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s. 14(1) and they include not only limited interest, but also. any other kind of limitation that may b e placed on thethe principles enunciated above to the facts of the present case, wethat the properties in suit were allotted to the appellant Tulasumma on July 30, 1949 under a compromise certified by the Court;(ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into. force; and(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in theis, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, there- fore, the case of the appellant would be taken out of the ambit of s. 14(2) and would fail squarely within s. 14 (1) read with the Explanation thereto. Thus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956. Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a limited interest in setting aside the alienations made by her. We are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law.
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State Of Assam & Anr Vs. J. N. Roy Biswas
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KRISHNA IYER, J.1. Was this virtually valstudinarian appeal by the Sate against an old and perhaps by now superannuated employee necessary? Litigation by the State means laying out public resources, in a country of much poverty and scarce resources and only if the demanding justice of a case calls for it should an appeal, otherwise of inconsequence, be carried to the highest Court. In the present instance a veterinary assistant, the respondent herein was suspended in 1960 followed by disciplinary proceedings. An enquiry officer appointed by the Director of Animal Husbandry and Veterinary Department conducted the proceedings, submitted his report of findings adverse to the respondent whereupon a show cause notice indicating the penalty of dismissal was issued. The delinquent pleaded innocence by his explanatory statement an d the Director on a study of the case in the light of the explanation offered, directed reinstatement in a cryptic order which runs thus:No. 81 DATED 11-12-622. Shri J. N. Roy Biswas, Manager, East Harinagar Live stock Farm (Cachar) who was placed under suspension vide this office order No. 42 dated 23-12-60, is re-instated in the same post of Manager, at East Harinagar Livestock Farm with effect from the date the reports for duty.Sd/- G. K. Mehra,Director of Animal Husbandry &Vety.Department, Assam, Gauhati."Memo No. PI-918/26822 Dated Gauhati, the 13th Dec. 62. Copy forwarded to:-1. Shri J. N. Roy Biswas, Manager, East Harinagar Livestock Farm (under suspension) C/o Brahmachari Maharaj Shri Dawarikanath, Ramkrishna Seva Samity, Chatribari, Gauhati, for information and necessary action. The findings and orders of the proceeding will follow 2 . . . . . 33. The findings and orders together with the regularisation of the period of suspension of Shri J. N. Roy Biswas with effect from 5-1-61 to the date of his reporting for duty at East Harinagar Livestock Farm will be communicated separately. The date of joining of Shri Biswas may be in formed to this office separately.Sd/- B. K. Dasfor Director of Animal Hy. &Vety.4. It is noteworthy that no reasoned findings were recorded. That particular officer retired and his successor wrote to the Joint Secretary to Government that from the materials of the case the delinquent r merited punishment and the proceedings be re-opened. This was done and as the de novo recording of evidence progressed the respondent moved the High Court under Art. 226 for a writ of prohibition as, in his submission, there was no power to re- open a case concluded by exoneration and reinstatement and the illegal vexation of a second enquiry should be arrested. This grievance was held good by the High Court which granted the relief sought.5. What is the conspectus of circumstances ? A small veterinary official, a long enquiry for misconduct, a final direction canceling suspension and reinstating him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the mean while. No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official . Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event . of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once been absolved.
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0[ds]A small veterinary official, a long enquiry for misconduct, a final direction canceling suspension and reinstating him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the mean while. No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official . Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event . of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once been absolved.
| 0 | 740 | 242 |
### 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:
KRISHNA IYER, J.1. Was this virtually valstudinarian appeal by the Sate against an old and perhaps by now superannuated employee necessary? Litigation by the State means laying out public resources, in a country of much poverty and scarce resources and only if the demanding justice of a case calls for it should an appeal, otherwise of inconsequence, be carried to the highest Court. In the present instance a veterinary assistant, the respondent herein was suspended in 1960 followed by disciplinary proceedings. An enquiry officer appointed by the Director of Animal Husbandry and Veterinary Department conducted the proceedings, submitted his report of findings adverse to the respondent whereupon a show cause notice indicating the penalty of dismissal was issued. The delinquent pleaded innocence by his explanatory statement an d the Director on a study of the case in the light of the explanation offered, directed reinstatement in a cryptic order which runs thus:No. 81 DATED 11-12-622. Shri J. N. Roy Biswas, Manager, East Harinagar Live stock Farm (Cachar) who was placed under suspension vide this office order No. 42 dated 23-12-60, is re-instated in the same post of Manager, at East Harinagar Livestock Farm with effect from the date the reports for duty.Sd/- G. K. Mehra,Director of Animal Husbandry &Vety.Department, Assam, Gauhati."Memo No. PI-918/26822 Dated Gauhati, the 13th Dec. 62. Copy forwarded to:-1. Shri J. N. Roy Biswas, Manager, East Harinagar Livestock Farm (under suspension) C/o Brahmachari Maharaj Shri Dawarikanath, Ramkrishna Seva Samity, Chatribari, Gauhati, for information and necessary action. The findings and orders of the proceeding will follow 2 . . . . . 33. The findings and orders together with the regularisation of the period of suspension of Shri J. N. Roy Biswas with effect from 5-1-61 to the date of his reporting for duty at East Harinagar Livestock Farm will be communicated separately. The date of joining of Shri Biswas may be in formed to this office separately.Sd/- B. K. Dasfor Director of Animal Hy. &Vety.4. It is noteworthy that no reasoned findings were recorded. That particular officer retired and his successor wrote to the Joint Secretary to Government that from the materials of the case the delinquent r merited punishment and the proceedings be re-opened. This was done and as the de novo recording of evidence progressed the respondent moved the High Court under Art. 226 for a writ of prohibition as, in his submission, there was no power to re- open a case concluded by exoneration and reinstatement and the illegal vexation of a second enquiry should be arrested. This grievance was held good by the High Court which granted the relief sought.5. What is the conspectus of circumstances ? A small veterinary official, a long enquiry for misconduct, a final direction canceling suspension and reinstating him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the mean while. No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official . Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event . of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once been absolved.
### Response:
0
### Explanation:
A small veterinary official, a long enquiry for misconduct, a final direction canceling suspension and reinstating him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the disciplinary authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the mean while. No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted but with persistent litigative zeal Government has come in appeal to this Court against the petty official . Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such revisory power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a supervisory nature to be exercised in the event . of a subordinate disciplinary authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary authority after the delinquent had once been absolved.
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Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd
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Ass. 92 : LR 1970 Ass 183) a writ petition was filed challenging the revision of rates of royalty for two different periods. Rejecting this petition as not maintainable, a Division Bench of the High Court held that the complaint of the petitioner is that there is violation of his rights under the contract and that such violation of contractual obligation cannot be remedied by a writ petition. That exactly is the position in the case before us. Therefore, the High Court was in error in entertaining the writ petition and it should have been dismissed at the threshold. 10. In substance, this was a suit for refund of a royalty alleged to be unauthorisedly recovered and that could hardly be entertained in exercise of the writ jurisdiction of the High Court. 11. As the High Court has also disposed of the case on merits after overruling the preliminary objection, it is but meet that we may examine the case on merits and that itself would demonstrably show the dangerous course adopted by the High Court in examining rights and obligations claimed under the contract without proper or adequate material or evidence to reach a conclusion, more so when the petition raised disputed questions of facts which needed investigation. 12. Respondent I had entered into a lease dated September 27, 1932 with the Secretary of State for India. Part II of the lease describes the land leased to the respondent. The description is as under :N.C. Tengalbasti Village in Sootea Mauza in the Tezpur Sadar Sub-Division of Darrang District. Block No. 1 Field No. 2-1804 B. 4 K-12L Block No. 2 Field No. 3-1544 B. 2 K-13L Total - 1107.26 Acres on 3349 B. 2K-5L This land was taken on lease for cultivation and raising tea-garden. Under the relevant Clause 2 extracted above, the lessee was to pay timber valuation on full rate for all timber sold or removed for sale and on all timber removed for use unconnected with exploitation of the grant during the period of lease or renewed lease. From this negative covenant in the indenture of lease, the respondent says that where timber is cut and felled and removed for a purpose or use connected with exploitation of grant during the period of lease or renewed lease, royalty shall not be payable. Assuming the respondent is right in its construction of Clause 2 of the indenture of lease, in order to obtain relief, namely, to cut and remove timber from the leased area for purpose connected with the exploitation of the grant, it must show that the timber is being felled and cut from an area covered by the lease in which Clause 2 finds its place and that such timber is being removed for a purpose connected with the exploitation of the grant. To be more specific, following facts will have to be proved for obtaining relief :(i) The area covered by the grant. (ii) Felling of the trees from the area covered by the grant. (iii) Use to which the felled timber was to be put to. (iv) Such use will have to be one connected with the exploitation of the grant. (v) What is meant by the exploitation of the grant ? Could these facts be assumed without evidence ? Was the High Court justified in observing that it was not called upon to decide complicated question of facts ? Some averments in the petition were disputed. The appellant contended that Clause 2 of the indenture of lease only means that if there is some use of timber which is being felled and removed from the area covered by the grant for the purpose connected with the exploitation of that very grant, then and only then the relief can be claimed under Clause 2. The High Court found as a fact that the timber was sought to be removed for the purpose of constructing quarters for the workmen employed in Partabghur Garden is not situated in Tezalpatty Village. At any rate, Partabghur Garden where the houses for the workmen were to be constructed was situated outside the area covered by the grant, as also outside the Revenue Division in which the leased area is located. The High Court got over this difficulty by observing that the grant being in favour of an incorporated company, it can cut and remove timber from leased area for use at any place which is owned, managed or controlled by the company and it is immaterial whether one is directly connected with the other or not. If the timber is being felled from the area of one grant to be used at some other place where the company is carrying on its operation, the benefit of the removal of timber without payment of royalty would be available to the company anywhere in the world. To stretch this logic a little further, it would mean that if the respondent (company) is to set up a tea-garden outside India, it can as well cut and remove timber from N.C. Tezalpatty Grant 1 in Assam to the place outside India without the obligation to pay royalty. The fallacy underlying the approach of the High Court becomes self-evident. It is immaterial that the grantee was the company. The specific provision is that the grant is for a purpose of cultivation and raising tea-garden and that from the area covered by the grant, if timber is felled for purpose connected with the grant itself, namely, cultivation and raising tea garden in that area, then alone the benefit of removal of timber without payment of royalty can be availed of. It is admitted that Partabghur Tea Garden is outside the area covered by the grant, in fact in an altogether different division. In such a situation upon a true construction of Clause 2, Part IV of indenture of lease, the respondent-company was not entitled to remove timber without payment of royalty. Therefore, even on merits, the High Court was in error in granting relief.
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1[ds]5. Unquestionably, the rights and obligations between the parties to this appeal are governed by the terms of the lease dated September 27, 1932. Specifically, the respondent who was a petitioner in the High Court claimed the right to relief under Clause 2 of Part IV of the indenture of lease which reads as under :A bare perusal of Clause 2 of Part IV of the indenture of lease extracted hereinbefore and the proviso to Rule 37 would at a glance show that the proviso enables a grantee to take benefit of it by fulfilling certain conditions namely by paying a reduced valuation representing only the profit which it is likely to derive from the use of timber for purposes connected with the exploitation of the grant. It is thus an enabling provision and the grantor of the lease may permit this option to be enjoyed by the grantee. But whether that has been done or not is always a question of fact. If the pre-condition is satisfied, the benefit can be taken. That again is a matter to be worked out by the parties to the indenture of lease. In fact, Clause 2 of the indenture of lease would show that the respondent grantee paid Rs. 12472/7 being timber valuation at reduced rates. The respondent having made the payment, whereupon the grantor of the lease agreed that the grantee will have to pay timber valuation at full rates on all timber sold or removed for sale and on all timber removed for use unconnected with exploitation of the grant during the period of his lease or renewed lease but the grantee will not have to pay royalty for timber felled and removed for purpose connected with the grant. It thus can be demonstrably established that the respondent was trying to enforce through the writ petition the right to remove timber without the liability to pay royalty not under the proviso to Rule 37 which was merely an enabling provision, but the specific term of lease agreed to between the parties. Proviso to Rule 37 may not be incorporated in an indenture of lease. If incorporated after fulfilling pre-condition it becomes a term of lease. The High Court, in our opinion, therefore, was in error in posing a question to itself as to whether the applicant (respondent herein) was entitled to the enforcement of legal right under the proviso to Rule 37 of the Settlement Rules. The camouflage successfully worked, but once this cloak is removed, it unmistakably transpires that the respondent was trying to claim benefit of Clause 2 of the lease having fulfilled its pre-condition and obtaining the inclusion of its latter part in the contract of lease. The question, therefore, really is whether such contractual obligation can be enforced by the writ jurisdiction ? How dangerous it is, can be demonstrably established in this case8. It is undoubtedly true that High Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. As pointed out earlier, the respondent (company) was merely trying to enforce a contractual obligation. To clear the ground let it be stated that obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulation. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claims is an exception that in view of a certain term in the indenture of lease, to wit, Clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. The High Court found as a fact that the timber was sought to be removed for the purpose of constructing quarters for the workmen employed in Partabghur Garden is not situated in Tezalpatty Village. At any rate, Partabghur Garden where the houses for the workmen were to be constructed was situated outside the area covered by the grant, as also outside the Revenue Division in which the leased area is located. The High Court got over this difficulty by observing that the grant being in favour of an incorporated company, it can cut and remove timber from leased area for use at any place which is owned, managed or controlled by the company and it is immaterial whether one is directly connected with the other or not. If the timber is being felled from the area of one grant to be used at some other place where the company is carrying on its operation, the benefit of the removal of timber without payment of royalty would be available to the company anywhere in the world. To stretch this logic a little further, it would mean that if the respondent (company) is to set up a tea-garden outside India, it can as well cut and remove timber from N.C. Tezalpatty Grant 1 in Assam to the place outside India without the obligation to pay royalty. The fallacy underlying the approach of the High Court becomes self-evident. It is immaterial that the grantee was the company. The specific provision is that the grant is for a purpose of cultivation and raising tea-garden and that from the area covered by the grant, if timber is felled for purpose connected with the grant itself, namely, cultivation and raising tea garden in that area, then alone the benefit of removal of timber without payment of royalty can be availed of. It is admitted that Partabghur Tea Garden is outside the area covered by the grant, in fact in an altogether different division. In such a situation upon a true construction of Clause 2, Part IV of indenture of lease, the respondent-company was not entitled to remove timber without payment of royalty. Therefore, even on merits, the High Court was in error in granting reliefTrue it is that if the timber is felled and removed for purpose connected with the exploitation of the grant, there would be no liability to pay the royalty. Such a positive right is claimed from a negative covenant in the lease. Clause 2 provides that the lessee had paid timber valuation at the reduced rate at Rs. 12472/7 on February 24, 1932 and March 3,1932.Thelessee according to the respondent would be liable to pay timber valuation at full rates on all timber sold or removed for sale, on all timber removed for use unconnected with exploitation of the grant during the period of the lease or renewed lease.Theimplication of the negative covenant would be that if timber is removed from the leased area connected with the exploitation of grant, there would be no liability to pay royalty on such timberaverments in the petition would show that the respondent claimed the right to remove timber without the obligation to pay royalty as flowing from the grant evidenced by the leaseThis camouflage of contending that the levy of royalty was not supported by law and that this was an unreasonable restriction on the fundamental right to carry on trade successfully persuaded the High Court to entertain the petitionShorn of all embellishment the relief claimed by the respondent was referable to nothing else but the term of the lease viz. Clause 2, Part IV. Maybe, that this term is a mere reproduction of proviso to Rule 37 of Assam Land and Revenue and Local Rates Regulations, but that by itself is not sufficient to contend that what the respondent was doing was enforcing a statutory provision.
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### 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:
Ass. 92 : LR 1970 Ass 183) a writ petition was filed challenging the revision of rates of royalty for two different periods. Rejecting this petition as not maintainable, a Division Bench of the High Court held that the complaint of the petitioner is that there is violation of his rights under the contract and that such violation of contractual obligation cannot be remedied by a writ petition. That exactly is the position in the case before us. Therefore, the High Court was in error in entertaining the writ petition and it should have been dismissed at the threshold. 10. In substance, this was a suit for refund of a royalty alleged to be unauthorisedly recovered and that could hardly be entertained in exercise of the writ jurisdiction of the High Court. 11. As the High Court has also disposed of the case on merits after overruling the preliminary objection, it is but meet that we may examine the case on merits and that itself would demonstrably show the dangerous course adopted by the High Court in examining rights and obligations claimed under the contract without proper or adequate material or evidence to reach a conclusion, more so when the petition raised disputed questions of facts which needed investigation. 12. Respondent I had entered into a lease dated September 27, 1932 with the Secretary of State for India. Part II of the lease describes the land leased to the respondent. The description is as under :N.C. Tengalbasti Village in Sootea Mauza in the Tezpur Sadar Sub-Division of Darrang District. Block No. 1 Field No. 2-1804 B. 4 K-12L Block No. 2 Field No. 3-1544 B. 2 K-13L Total - 1107.26 Acres on 3349 B. 2K-5L This land was taken on lease for cultivation and raising tea-garden. Under the relevant Clause 2 extracted above, the lessee was to pay timber valuation on full rate for all timber sold or removed for sale and on all timber removed for use unconnected with exploitation of the grant during the period of lease or renewed lease. From this negative covenant in the indenture of lease, the respondent says that where timber is cut and felled and removed for a purpose or use connected with exploitation of grant during the period of lease or renewed lease, royalty shall not be payable. Assuming the respondent is right in its construction of Clause 2 of the indenture of lease, in order to obtain relief, namely, to cut and remove timber from the leased area for purpose connected with the exploitation of the grant, it must show that the timber is being felled and cut from an area covered by the lease in which Clause 2 finds its place and that such timber is being removed for a purpose connected with the exploitation of the grant. To be more specific, following facts will have to be proved for obtaining relief :(i) The area covered by the grant. (ii) Felling of the trees from the area covered by the grant. (iii) Use to which the felled timber was to be put to. (iv) Such use will have to be one connected with the exploitation of the grant. (v) What is meant by the exploitation of the grant ? Could these facts be assumed without evidence ? Was the High Court justified in observing that it was not called upon to decide complicated question of facts ? Some averments in the petition were disputed. The appellant contended that Clause 2 of the indenture of lease only means that if there is some use of timber which is being felled and removed from the area covered by the grant for the purpose connected with the exploitation of that very grant, then and only then the relief can be claimed under Clause 2. The High Court found as a fact that the timber was sought to be removed for the purpose of constructing quarters for the workmen employed in Partabghur Garden is not situated in Tezalpatty Village. At any rate, Partabghur Garden where the houses for the workmen were to be constructed was situated outside the area covered by the grant, as also outside the Revenue Division in which the leased area is located. The High Court got over this difficulty by observing that the grant being in favour of an incorporated company, it can cut and remove timber from leased area for use at any place which is owned, managed or controlled by the company and it is immaterial whether one is directly connected with the other or not. If the timber is being felled from the area of one grant to be used at some other place where the company is carrying on its operation, the benefit of the removal of timber without payment of royalty would be available to the company anywhere in the world. To stretch this logic a little further, it would mean that if the respondent (company) is to set up a tea-garden outside India, it can as well cut and remove timber from N.C. Tezalpatty Grant 1 in Assam to the place outside India without the obligation to pay royalty. The fallacy underlying the approach of the High Court becomes self-evident. It is immaterial that the grantee was the company. The specific provision is that the grant is for a purpose of cultivation and raising tea-garden and that from the area covered by the grant, if timber is felled for purpose connected with the grant itself, namely, cultivation and raising tea garden in that area, then alone the benefit of removal of timber without payment of royalty can be availed of. It is admitted that Partabghur Tea Garden is outside the area covered by the grant, in fact in an altogether different division. In such a situation upon a true construction of Clause 2, Part IV of indenture of lease, the respondent-company was not entitled to remove timber without payment of royalty. Therefore, even on merits, the High Court was in error in granting relief.
### Response:
1
### Explanation:
proviso to Rule 37 which was merely an enabling provision, but the specific term of lease agreed to between the parties. Proviso to Rule 37 may not be incorporated in an indenture of lease. If incorporated after fulfilling pre-condition it becomes a term of lease. The High Court, in our opinion, therefore, was in error in posing a question to itself as to whether the applicant (respondent herein) was entitled to the enforcement of legal right under the proviso to Rule 37 of the Settlement Rules. The camouflage successfully worked, but once this cloak is removed, it unmistakably transpires that the respondent was trying to claim benefit of Clause 2 of the lease having fulfilled its pre-condition and obtaining the inclusion of its latter part in the contract of lease. The question, therefore, really is whether such contractual obligation can be enforced by the writ jurisdiction ? How dangerous it is, can be demonstrably established in this case8. It is undoubtedly true that High Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. As pointed out earlier, the respondent (company) was merely trying to enforce a contractual obligation. To clear the ground let it be stated that obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulation. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claims is an exception that in view of a certain term in the indenture of lease, to wit, Clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. The High Court found as a fact that the timber was sought to be removed for the purpose of constructing quarters for the workmen employed in Partabghur Garden is not situated in Tezalpatty Village. At any rate, Partabghur Garden where the houses for the workmen were to be constructed was situated outside the area covered by the grant, as also outside the Revenue Division in which the leased area is located. The High Court got over this difficulty by observing that the grant being in favour of an incorporated company, it can cut and remove timber from leased area for use at any place which is owned, managed or controlled by the company and it is immaterial whether one is directly connected with the other or not. If the timber is being felled from the area of one grant to be used at some other place where the company is carrying on its operation, the benefit of the removal of timber without payment of royalty would be available to the company anywhere in the world. To stretch this logic a little further, it would mean that if the respondent (company) is to set up a tea-garden outside India, it can as well cut and remove timber from N.C. Tezalpatty Grant 1 in Assam to the place outside India without the obligation to pay royalty. The fallacy underlying the approach of the High Court becomes self-evident. It is immaterial that the grantee was the company. The specific provision is that the grant is for a purpose of cultivation and raising tea-garden and that from the area covered by the grant, if timber is felled for purpose connected with the grant itself, namely, cultivation and raising tea garden in that area, then alone the benefit of removal of timber without payment of royalty can be availed of. It is admitted that Partabghur Tea Garden is outside the area covered by the grant, in fact in an altogether different division. In such a situation upon a true construction of Clause 2, Part IV of indenture of lease, the respondent-company was not entitled to remove timber without payment of royalty. Therefore, even on merits, the High Court was in error in granting reliefTrue it is that if the timber is felled and removed for purpose connected with the exploitation of the grant, there would be no liability to pay the royalty. Such a positive right is claimed from a negative covenant in the lease. Clause 2 provides that the lessee had paid timber valuation at the reduced rate at Rs. 12472/7 on February 24, 1932 and March 3,1932.Thelessee according to the respondent would be liable to pay timber valuation at full rates on all timber sold or removed for sale, on all timber removed for use unconnected with exploitation of the grant during the period of the lease or renewed lease.Theimplication of the negative covenant would be that if timber is removed from the leased area connected with the exploitation of grant, there would be no liability to pay royalty on such timberaverments in the petition would show that the respondent claimed the right to remove timber without the obligation to pay royalty as flowing from the grant evidenced by the leaseThis camouflage of contending that the levy of royalty was not supported by law and that this was an unreasonable restriction on the fundamental right to carry on trade successfully persuaded the High Court to entertain the petitionShorn of all embellishment the relief claimed by the respondent was referable to nothing else but the term of the lease viz. Clause 2, Part IV. Maybe, that this term is a mere reproduction of proviso to Rule 37 of Assam Land and Revenue and Local Rates Regulations, but that by itself is not sufficient to contend that what the respondent was doing was enforcing a statutory provision.
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Rasheed Beg & Others Vs. State of Madhya Pradesh
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Arifbeg succumbed to his injuries on 24-8-1969.3. All the accused pleaded not guilty. They further said that they have been falsely implicated due to enmity.4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg two of them are oral, and the remaining two in writing. The oral dying declarations were made, to Majeed Khan and Sardarbeg. The written dying declarations were made to L. N. Dubey, Investigating Officer, and Dr. S. P. Jain in the Sujalpur hospital. the dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr. S. P. Jain is Ex. P. 5, Ex. P. 10 was recorded earlier in time than Ex. P. 5.5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, the brother-in-law of the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral dying declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder of Chitubeg and Arifbeg.6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said: "Therefore about the actual incident the statement of Sardarbeg should be omitted altogether. In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said: "The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbegs evidence there is no evidence about the actual killing of Chitubeg. Accordingly, the High Court acquitted all the nine persons of the murder of Chitubeg.7. The High Court then proceeded to discuss the evidence in regard to the murder of Arifbeg. The oral evidence of Sardarbeg has already been discarded. So there remained only thee dying declarations, one oral made to Sardarbeg, and two written made to the Investigating Officer and Dr. S. P. Jain. The High Court says: "In this case there have been dying declarations and in fact the prosecution case depends only on dying declarations. As it has disbelieved the oral evidence of Sardarbeg, naturally it has discarded the dying declaration said to have been made to him by Arifbeg. The High Court said: "The dying declaration as stated by him should be discarded as we do not believe him.8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S. P. Jain.9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbegs condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So the Tahsildar-Magistrate was called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S. P. Jain, however recorded his dying declaration a little after the Tahsildar had gone back.The High Court has also noted another disconcerting circumstance. Majeed Khan, brother-in-law of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S. P. Jain.While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg Azizbeg, Rasheedbeg, Waheedbeg and Maseed Beg, in his dying declaration to Dr. S. P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, Maseedbeg, Noorbeg and Rasheedbeg.In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence.The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said: "Whatever the condition of Arifbeg may be - whether there was some improvement or not - the condition when the Sub-Inspector took the declaration was not very good as also the condition when the doctor himself recorded the same. It may be that he gained consciousness. We fell that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons - Sub-Inspector and Medical Officer to hold that they took part in the assault on Arifbeg: The word "feel has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants.
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1[ds]4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg two of them are oral, and the remaining two in writing. The oral dying declarations were made, to Majeed Khan and Sardarbeg. The written dying declarations were made to L. N. Dubey, Investigating Officer, and Dr. S. P. Jain in the Sujalpur hospital. the dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr. S. P. Jain is Ex. P. 5, Ex. P. 10 was recorded earlier in time than Ex. P. 5.5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, theof the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral dying declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder of Chitubeg and Arifbeg.6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said: "Therefore about the actual incident the statement of Sardarbeg should be omitted altogether. In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said: "The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbegs evidence there is no evidence about the actual killing of Chitubeg. Accordingly, the High Court acquitted all the nine persons of the murder of Chitubeg.7. The High Court then proceeded to discuss the evidence in regard to the murder of Arifbeg. The oral evidence of Sardarbeg has already been discarded. So there remained only thee dying declarations, one oral made to Sardarbeg, and two written made to the Investigating Officer and Dr. S. P. Jain. The High Court says: "In this case there have been dying declarations and in fact the prosecution case depends only on dying declarations. As it has disbelieved the oral evidence of Sardarbeg, naturally it has discarded the dying declaration said to have been made to him by Arifbeg. The High Court said: "The dying declaration as stated by him should be discarded as we do not believe him.8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S. P. Jain.9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbegs condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So thewas called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S. P. Jain, however recorded his dying declaration a little after the Tahsildar had gone back.The High Court has also noted another disconcerting circumstance. Majeed Khan,of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S. P. Jain.While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg Azizbeg, Rasheedbeg, Waheedbeg and Maseed Beg, in his dying declaration to Dr. S. P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, Maseedbeg, Noorbeg and Rasheedbeg.In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence.The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said: "Whatever the condition of Arifbeg may bewhether there was some improvement or notthe condition when thetook the declaration was not very good as alsothe condition when thedoctor himself recorded the same. It may be that he gained consciousness. We fell that it will be safe to accept the names of the accused persons common in the dying declarations made to these two personsand Medical Officer to hold that they took part in the assault on Arifbeg: The word "feel has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants.
| 1 | 1,520 | 1,061 |
### 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:
Arifbeg succumbed to his injuries on 24-8-1969.3. All the accused pleaded not guilty. They further said that they have been falsely implicated due to enmity.4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg two of them are oral, and the remaining two in writing. The oral dying declarations were made, to Majeed Khan and Sardarbeg. The written dying declarations were made to L. N. Dubey, Investigating Officer, and Dr. S. P. Jain in the Sujalpur hospital. the dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr. S. P. Jain is Ex. P. 5, Ex. P. 10 was recorded earlier in time than Ex. P. 5.5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, the brother-in-law of the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral dying declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder of Chitubeg and Arifbeg.6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said: "Therefore about the actual incident the statement of Sardarbeg should be omitted altogether. In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said: "The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbegs evidence there is no evidence about the actual killing of Chitubeg. Accordingly, the High Court acquitted all the nine persons of the murder of Chitubeg.7. The High Court then proceeded to discuss the evidence in regard to the murder of Arifbeg. The oral evidence of Sardarbeg has already been discarded. So there remained only thee dying declarations, one oral made to Sardarbeg, and two written made to the Investigating Officer and Dr. S. P. Jain. The High Court says: "In this case there have been dying declarations and in fact the prosecution case depends only on dying declarations. As it has disbelieved the oral evidence of Sardarbeg, naturally it has discarded the dying declaration said to have been made to him by Arifbeg. The High Court said: "The dying declaration as stated by him should be discarded as we do not believe him.8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S. P. Jain.9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbegs condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So the Tahsildar-Magistrate was called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S. P. Jain, however recorded his dying declaration a little after the Tahsildar had gone back.The High Court has also noted another disconcerting circumstance. Majeed Khan, brother-in-law of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S. P. Jain.While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg Azizbeg, Rasheedbeg, Waheedbeg and Maseed Beg, in his dying declaration to Dr. S. P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, Maseedbeg, Noorbeg and Rasheedbeg.In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence.The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said: "Whatever the condition of Arifbeg may be - whether there was some improvement or not - the condition when the Sub-Inspector took the declaration was not very good as also the condition when the doctor himself recorded the same. It may be that he gained consciousness. We fell that it will be safe to accept the names of the accused persons common in the dying declarations made to these two persons - Sub-Inspector and Medical Officer to hold that they took part in the assault on Arifbeg: The word "feel has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants.
### Response:
1
### Explanation:
4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg two of them are oral, and the remaining two in writing. The oral dying declarations were made, to Majeed Khan and Sardarbeg. The written dying declarations were made to L. N. Dubey, Investigating Officer, and Dr. S. P. Jain in the Sujalpur hospital. the dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr. S. P. Jain is Ex. P. 5, Ex. P. 10 was recorded earlier in time than Ex. P. 5.5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, theof the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral dying declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder of Chitubeg and Arifbeg.6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said: "Therefore about the actual incident the statement of Sardarbeg should be omitted altogether. In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said: "The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbegs evidence there is no evidence about the actual killing of Chitubeg. Accordingly, the High Court acquitted all the nine persons of the murder of Chitubeg.7. The High Court then proceeded to discuss the evidence in regard to the murder of Arifbeg. The oral evidence of Sardarbeg has already been discarded. So there remained only thee dying declarations, one oral made to Sardarbeg, and two written made to the Investigating Officer and Dr. S. P. Jain. The High Court says: "In this case there have been dying declarations and in fact the prosecution case depends only on dying declarations. As it has disbelieved the oral evidence of Sardarbeg, naturally it has discarded the dying declaration said to have been made to him by Arifbeg. The High Court said: "The dying declaration as stated by him should be discarded as we do not believe him.8. After the two oral dying declarations have been discarded, there survived only the two written dying declarations, one made to the Investigating Officer and the other to Dr. S. P. Jain.9. As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbegs condition was not very good when the Investigating Officer recorded the dying declaration. It appears that his condition was serious. So thewas called to record his dying declaration. The Tahsildar, however, returned without recording it as according to him the condition of Arifbeg was very serious and he was losing consciousness every moment. Dr. S. P. Jain, however recorded his dying declaration a little after the Tahsildar had gone back.The High Court has also noted another disconcerting circumstance. Majeed Khan,of Chitubeg, was all along with Arifbeg. Majeed Khan himself bore enmity with the appellants. He had accompanied Arifbeg from the place of incident to the hospital. He was present when the dying declarations were recorded. Arifbeg was 12 years of age. It is true that Majeed Khan has denied that he had tutored Arifbeg to name the appellants. But his denial should not inspire confidence because Arifbeg undoubtedly incriminated two more persons as assailants in the dying declaration made to Dr. S. P. Jain.While in the dying declaration made to the Investigating Officer he has named five persons, Majeedbeg Azizbeg, Rasheedbeg, Waheedbeg and Maseed Beg, in his dying declaration to Dr. S. P. Jain he has implicated Azizbeg, Waheedbeg, Basheerbeg, Majeedbeg, Maseedbeg, Noorbeg and Rasheedbeg.In the latter dying declaration he has thus implicated two more persons Basheerbeg and Noorbeg. Legally a dying declaration which should inspire confidence may be sufficient to hold guilty the persons accused therein. But in view of the circumstances already indicated, we think that it is a case where the two dying declarations should not be believed without some corroborative evidence.The Sessions Judge could safely rely on them because he had already believed the oral evidence of Sardarbeg. The High Court has rightly discarded the oral evidence of Sardarbeg. In the result, there is no credible evidence to corroborate the dying declarations. It seems to us that the High Court also felt some difficulty in convicting the appellants for want of credible evidence to corroborate the dying declarations. The High Court said: "Whatever the condition of Arifbeg may bewhether there was some improvement or notthe condition when thetook the declaration was not very good as alsothe condition when thedoctor himself recorded the same. It may be that he gained consciousness. We fell that it will be safe to accept the names of the accused persons common in the dying declarations made to these two personsand Medical Officer to hold that they took part in the assault on Arifbeg: The word "feel has an air of uncertainty. We are reluctant to approve of this mechanical test of the greatest common measure in the two dying declarations to fasten guilt on the appellants for there are certain suspicious circumstances which should require dependable evidence in corroboration of the dying declarations. As there is no such corroborative evidence in support of the two dying declarations, we think that it will not be safe to maintain the conviction of the appellants.
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M. Selvaraj Daniel Vs. Management Of State Bank Of India
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Sastry Award in the disputes between certain banking companies and their workmen as modified by the labour Appellate Tribunal was given statutory force by the Industrial Disputes (Banking Companies) Decisions Act, 1955. In applying to the appellant this award which is admittedly applicable to him the bank proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1. According to the appellant, however, he is entitled under the award to have his annual increment in December each year. On December 14, 1960, the appellant made an application under s. 33 (c) (2) of the Industrial Disputes Act before the Labour Court, Delhi, praying that the benefit under the award of which he is being deprived by the bank by the alleged error in its implementation should be computed and directed to be paid to him. A schedule was annexed to the application purporting to show that on the basis that the annual increment has to be allowed on December 14, of each year and not on April, 1, the appellant was entitled to an additional sum of Rs. 146/- plus dearness allowance.2. In resisting this application the Bank raised a preliminary objection that the question whether or not the appellant was entitled to the benefits as alleged by him could not be raised or decided in an application under s. 33 (c) (2). On the merits the bank pleaded that it had acted in accordance with the terms of the Sastry Award in allowing increments on the 1st April of each year.The Labour Court rejected the preliminary objection but held on the merits that the annual increment of the appellant fell due from after April 1, 1954, and on April 1, in succeeding years. Accordingly, the Court rejected the application. Against this order of rejection this appeal has been filed by special leave of this court.3. Before us the appellant contends that the Labour Court has erred in thinking that tinder the award annual increments to workmen appointed after January 31, 1950 and before the new scales were brought into force, fell due on April 1, of each year, starting from April 1, 1954.4. The respondent in addition to supporting the decision of the Labour Court on merits further contended that the Court had wrongly rejected the preliminary objection raised by the bank.5. The scope of s. 33 (c) (2) of the Industrial Disputes Act has been elaborately considered by us in the Central Bank of India Ltd. v. P.S. Rajagopalan ([1964] Vol, 3 S. C. R. 140), and we have decided there that the Labour Court has got jurisdiction to decide on an examination of an award or settlement whether or not the workman is entitled to the benefits claimed by him. The preliminary objection must therefore be held to have been rightly rejected by the Court. It is necessary therefore to decide the appellants contention that the Labour Court had erred in its decision on the merits.6. The appellants case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and not April 1, each year as calculated by the bank. The bank contended however that as the adjusted salary would have effect under para. 292 from April l, 1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court considered the appellants petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the banks contention based on para. 292 (12) which after modification by the Labour Appellate Tribunal says : "The adjusted pay shall have effect from April 1, 1954." The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954.It is necessary to notice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would not be governed by para. 292 for the simple reason that they were not "existing staff" of the bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In consequence., he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/- per month from December 14, 1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore entitled to Rs. 146/- plus dearness allowance as the benefit to which he is entitled- under the Sastry Award but which has not been paid.7. The Labour Court was, therefore, wrong in rejecting the appellants petition.8.
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1[ds]The appellants case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and not April 1, each year as calculated by the bank. The bank contended however that as the adjusted salary would have effect under para. 292 from April l, 1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court considered the appellants petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the banks contention based on para. 292 (12) which after modification by the Labour Appellate Tribunal says : "The adjusted pay shall have effect from April 1, 1954." The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954.It is necessary to notice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would not be governed by para. 292 for the simple reason that they were not "existing staff" of the bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In consequence., he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/- per month from December 14, 1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore entitled to Rs. 146/- plus dearness allowance as the benefit to which he is entitled- under the Sastry Award but which has not beenLabour Court was, therefore, wrong in rejecting the appellants petition.
| 1 | 1,170 | 563 |
### 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:
Sastry Award in the disputes between certain banking companies and their workmen as modified by the labour Appellate Tribunal was given statutory force by the Industrial Disputes (Banking Companies) Decisions Act, 1955. In applying to the appellant this award which is admittedly applicable to him the bank proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1. According to the appellant, however, he is entitled under the award to have his annual increment in December each year. On December 14, 1960, the appellant made an application under s. 33 (c) (2) of the Industrial Disputes Act before the Labour Court, Delhi, praying that the benefit under the award of which he is being deprived by the bank by the alleged error in its implementation should be computed and directed to be paid to him. A schedule was annexed to the application purporting to show that on the basis that the annual increment has to be allowed on December 14, of each year and not on April, 1, the appellant was entitled to an additional sum of Rs. 146/- plus dearness allowance.2. In resisting this application the Bank raised a preliminary objection that the question whether or not the appellant was entitled to the benefits as alleged by him could not be raised or decided in an application under s. 33 (c) (2). On the merits the bank pleaded that it had acted in accordance with the terms of the Sastry Award in allowing increments on the 1st April of each year.The Labour Court rejected the preliminary objection but held on the merits that the annual increment of the appellant fell due from after April 1, 1954, and on April 1, in succeeding years. Accordingly, the Court rejected the application. Against this order of rejection this appeal has been filed by special leave of this court.3. Before us the appellant contends that the Labour Court has erred in thinking that tinder the award annual increments to workmen appointed after January 31, 1950 and before the new scales were brought into force, fell due on April 1, of each year, starting from April 1, 1954.4. The respondent in addition to supporting the decision of the Labour Court on merits further contended that the Court had wrongly rejected the preliminary objection raised by the bank.5. The scope of s. 33 (c) (2) of the Industrial Disputes Act has been elaborately considered by us in the Central Bank of India Ltd. v. P.S. Rajagopalan ([1964] Vol, 3 S. C. R. 140), and we have decided there that the Labour Court has got jurisdiction to decide on an examination of an award or settlement whether or not the workman is entitled to the benefits claimed by him. The preliminary objection must therefore be held to have been rightly rejected by the Court. It is necessary therefore to decide the appellants contention that the Labour Court had erred in its decision on the merits.6. The appellants case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and not April 1, each year as calculated by the bank. The bank contended however that as the adjusted salary would have effect under para. 292 from April l, 1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court considered the appellants petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the banks contention based on para. 292 (12) which after modification by the Labour Appellate Tribunal says : "The adjusted pay shall have effect from April 1, 1954." The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954.It is necessary to notice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would not be governed by para. 292 for the simple reason that they were not "existing staff" of the bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In consequence., he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/- per month from December 14, 1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore entitled to Rs. 146/- plus dearness allowance as the benefit to which he is entitled- under the Sastry Award but which has not been paid.7. The Labour Court was, therefore, wrong in rejecting the appellants petition.8.
### Response:
1
### Explanation:
The appellants case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and not April 1, each year as calculated by the bank. The bank contended however that as the adjusted salary would have effect under para. 292 from April l, 1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court considered the appellants petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the banks contention based on para. 292 (12) which after modification by the Labour Appellate Tribunal says : "The adjusted pay shall have effect from April 1, 1954." The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954.It is necessary to notice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would not be governed by para. 292 for the simple reason that they were not "existing staff" of the bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In consequence., he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/- per month from December 14, 1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore entitled to Rs. 146/- plus dearness allowance as the benefit to which he is entitled- under the Sastry Award but which has not beenLabour Court was, therefore, wrong in rejecting the appellants petition.
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Chunilal Vithaldas Vs. Mohanlal Motilal Patel
|
one Masataram a consulting architect estimated the cost of the structure to be Rupees 2,35,777-1-2 at the rates prevailing in 1950. He stated that the prices prevailing in 1954 when he gave evidence were a little lower than the prices prevailing in 19.50, though in respect of certain items the prices may have gone up." The Trial Court and the District Court regarded his evidence as reliable, but having regard to the fact that in constructing the theatre the respondent had used some second-hand material, the Courts below held that the cost of the structure was truly shown by the accounts of the respondent, and that conclusion must be accepted.16. It is then urged that ordinarily in towns like Bombay, Ahmedabad and Poona standard rent is determined as equivalent to one-twelfth of the gross return on the sum invested by the landlord at the rate of 8.66 per cent on the cost of the building, and at the rate of 6 per cent on the value of the land, and since the gross rate includes municipal taxes which vary between 25 per cent to 38.33 per cent of the letting value standard rent is considered as reasonable if it fetches to the landlord 41/2 per cent per annum on the value of the land and 5 1/2 per cent on the cost of building. It is true that in the city of Bhavnagar no municipal taxes and rates were, at the material time, Charged by the Municipality, and, therefore, some adjustment would have to be made in ascertaining the percentage of gross return on the investment in determining standard rent. It is common ground that charges for water supply are made by the Municipality. There is, however, no evidence on the record to show as to what the rates for water supplied by the Municipality were. It was faintly suggested by counsel for the appellant that the water charges are payable by the tenant, but there is nothing to support that contention. The appellate Court has, on a consideration of the evidence, come to the conclusion that an overall rate of 7 per cent on the investment for the building and land may be regarded in the town of Bhavnager as an adequate return to the landlord. What rate of return in respect of the landed property may be regarded as reasonable in determining the standard rent under S. 11 of the Act depends upon certain variable factors. Normal expected yield from immovable property in the locality, return from alternative investments, municipal and other charges, the use to which the property is to be put, its condition, repairs it needs to keep it in tenantable condition and a host of other related circumstances must enter into the determination. On a review of the reasons given, it cannot be said that the District Court committed any error of principal in coming to the conclusion that 7 per cent gross return on the cost of construction should be regarded as an adequate return from the property in the town of Bhavnagar which is utilized for a cinematograph theatre.17. Two other questions remain to be considered. Even though it was not pleaded in the petition filed by the appellant that possession of a part of the building let out was not delivered, the appellant was permitted, without objection, to raise that question at the trial. It was the case of the appellant that possession of the cellar and the space reserved for a restaurant were not delivered to him, and on that account appropriate deduction should be made from the standard rent. The respondent conceded that possession of the cellar was not given to the appellant, but his case was that he did not deliver the cellar because it was not included in the premises demised in favour of the appellant. Unfortunately the lease has not been printed in the paper book and the parties have not chosen to produce for our perusal a copy of the lease. We have not thought it necessary to hold up the proceeding in this Court in view of the ultimate order we propose to make in this appeal. The Trial Court was of the view that having regard to the carpet area of the cellar Rs. 100 per mensem should be deducted from the standard rest of the entire building. The District Court without giving any reasons observed that fair standard rent for the cellar would be Rs. 50 per mensem In our view the Court was not right in reducing the proportionate rent of the cellar from Rs. 100 to Rs. 50. The question whether the cellar was let out to the appellant under the terms of the lease will be determined by the High Court of Gujarat before which the appeal flied by the respondent is pending. We have for the purpose of this appeal held, agreeing with the District Court that the standard rent of the entire building is Rs. 1,200 per mensem. If the cellar is not included in the tenancy, Rs. 100 will have to be deducted and the standard rent will be Rs. 1,100 per mensem.18. The other matter in dispute relates to the space intended to be used for a restaurant. The respondent contended that possession of that room was delivered to the appellant: the appellant denied that it was so delivered. It is common ground that it was part of the premises leased. Enquiry into the question whether by reason of default on the part of the landlord in delivering possession of a part of the premises let out under the lease any loss was occasioned to the tenant and to what relief the tenant is entitled on that account is foreign to the determination of standard rent. We, therefore, decline to enter into the question whether possession of the pace intended for use as restaurant was delivered by the respondent to the appellant. The decision of the Courts below on that part of the case is vacated.
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0[ds]6. It is somewhat unfortunate that the appeal filed by the respondent has been admitted to the file and is to be heard on the merits, while the appeal filed by the appellant was summarilyare unable to agree with that plea.It is true that in the body of S. 100 of the Code of Civil Procedure the Legislature has not used the expression "second appeal". That expression, however, occurs in the marginal note of S. 100 and in the text of Ss. 101, 102 andare of the view that a second appeal under S. 28 of the Act may be entertained by the High Court within the limits prescribed by S. 100 of the Code of Civil Procedure, and it is not open to the parties to demand reappraisal of the evidence by the High Court on the ground that the District Court has erred in its view of the evidence. The High Court of Bombay was apparently of the view that no question of law arose in the appeal, and it was competent to dismiss the appeal under O. 41, R. 11 (1) of thedo not think that the Courts below committed any error of law or misconceived the evidence in holding that only Rs.be disallowed out of the total cost of construction on the round that they could not reasonably enter thethat would be a wholly faulty method of valuation. Rent received from a structure, is determined not merely by the nature of the structure and the accommodation provided thereby, but also by the situation and the amenities provided by the land on which the structure stands. A building when let out forms a composite unit with the land on which it stands, and the rent received from the buildings cannot be wholly attributed to the building. The respondent purchased the property with a view to pull down the houses thereon and to put up a building adapted for use as a cinematograph theatre. It is true that some rent was recovered from the tenants before the structures were pulled down. But since the respondent purchased the land and the buildings for putting up a new building thereon, he may reasonably be regarded as having paid for the property purchased the value of the land and of the debris of the superstructures. The debris which by sale fetched Rs.has been given credit for in arriving at the total cost of the theatre.15. It is also worthy of note that one Masataram a consulting architect estimated the cost of the structure to be Rupeesat the rates prevailing in 1950. He stated that the prices prevailing in 1954 when he gave evidence were a little lower than the prices prevailing in 19.50, though in respect of certain items the prices may have gone up." The Trial Court and the District Court regarded his evidence as reliable, but having regard to the fact that in constructing the theatre the respondent had used somematerial, the Courts below held that the cost of the structure was truly shown by the accounts of the respondent, and that conclusion must beis true that in the city of Bhavnagar no municipal taxes and rates were, at the material time, Charged by the Municipality, and, therefore, some adjustment would have to be made in ascertaining the percentage of gross return on the investment in determining standard rent. It is common ground that charges for water supply are made by the Municipality. There is, however, no evidence on the record to show as to what the rates for water supplied by the Municipality were. It was faintly suggested by counsel for the appellant that the water charges are payable by the tenant, but there is nothing to support that contention. The appellate Court has, on a consideration of the evidence, come to the conclusion that an overall rate of 7 per cent on the investment for the building and land may be regarded in the town of Bhavnager as an adequate return to the landlord. What rate of return in respect of the landed property may be regarded as reasonable in determining the standard rent under S. 11 of the Act depends upon certain variable factors. Normal expected yield from immovable property in the locality, return from alternative investments, municipal and other charges, the use to which the property is to be put, its condition, repairs it needs to keep it in tenantable condition and a host of other related circumstances must enter into the determination. On a review of the reasons given, it cannot be said that the District Court committed any error of principal in coming to the conclusion that 7 per cent gross return on the cost of construction should be regarded as an adequate return from the property in the town of Bhavnagar which is utilized for a cinematographhave for the purpose of this appeal held, agreeing with the District Court that the standard rent of the entire building is Rs. 1,200 per mensem. If the cellar is not included in the tenancy, Rs. 100 will have to be deducted and the standard rent will be Rs. 1,100 per mensem.It is common ground that it was part of the premises leased. Enquiry into the question whether by reason of default on the part of the landlord in delivering possession of a part of the premises let out under the lease any loss was occasioned to the tenant and to what relief the tenant is entitled on that account is foreign to the determination of standard rent. We, therefore, decline to enter into the question whether possession of the pace intended for use as restaurant was delivered by the respondent to the appellant. The decision of the Courts below on that part of the case is vacated.
| 0 | 3,532 | 1,037 |
### 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:
one Masataram a consulting architect estimated the cost of the structure to be Rupees 2,35,777-1-2 at the rates prevailing in 1950. He stated that the prices prevailing in 1954 when he gave evidence were a little lower than the prices prevailing in 19.50, though in respect of certain items the prices may have gone up." The Trial Court and the District Court regarded his evidence as reliable, but having regard to the fact that in constructing the theatre the respondent had used some second-hand material, the Courts below held that the cost of the structure was truly shown by the accounts of the respondent, and that conclusion must be accepted.16. It is then urged that ordinarily in towns like Bombay, Ahmedabad and Poona standard rent is determined as equivalent to one-twelfth of the gross return on the sum invested by the landlord at the rate of 8.66 per cent on the cost of the building, and at the rate of 6 per cent on the value of the land, and since the gross rate includes municipal taxes which vary between 25 per cent to 38.33 per cent of the letting value standard rent is considered as reasonable if it fetches to the landlord 41/2 per cent per annum on the value of the land and 5 1/2 per cent on the cost of building. It is true that in the city of Bhavnagar no municipal taxes and rates were, at the material time, Charged by the Municipality, and, therefore, some adjustment would have to be made in ascertaining the percentage of gross return on the investment in determining standard rent. It is common ground that charges for water supply are made by the Municipality. There is, however, no evidence on the record to show as to what the rates for water supplied by the Municipality were. It was faintly suggested by counsel for the appellant that the water charges are payable by the tenant, but there is nothing to support that contention. The appellate Court has, on a consideration of the evidence, come to the conclusion that an overall rate of 7 per cent on the investment for the building and land may be regarded in the town of Bhavnager as an adequate return to the landlord. What rate of return in respect of the landed property may be regarded as reasonable in determining the standard rent under S. 11 of the Act depends upon certain variable factors. Normal expected yield from immovable property in the locality, return from alternative investments, municipal and other charges, the use to which the property is to be put, its condition, repairs it needs to keep it in tenantable condition and a host of other related circumstances must enter into the determination. On a review of the reasons given, it cannot be said that the District Court committed any error of principal in coming to the conclusion that 7 per cent gross return on the cost of construction should be regarded as an adequate return from the property in the town of Bhavnagar which is utilized for a cinematograph theatre.17. Two other questions remain to be considered. Even though it was not pleaded in the petition filed by the appellant that possession of a part of the building let out was not delivered, the appellant was permitted, without objection, to raise that question at the trial. It was the case of the appellant that possession of the cellar and the space reserved for a restaurant were not delivered to him, and on that account appropriate deduction should be made from the standard rent. The respondent conceded that possession of the cellar was not given to the appellant, but his case was that he did not deliver the cellar because it was not included in the premises demised in favour of the appellant. Unfortunately the lease has not been printed in the paper book and the parties have not chosen to produce for our perusal a copy of the lease. We have not thought it necessary to hold up the proceeding in this Court in view of the ultimate order we propose to make in this appeal. The Trial Court was of the view that having regard to the carpet area of the cellar Rs. 100 per mensem should be deducted from the standard rest of the entire building. The District Court without giving any reasons observed that fair standard rent for the cellar would be Rs. 50 per mensem In our view the Court was not right in reducing the proportionate rent of the cellar from Rs. 100 to Rs. 50. The question whether the cellar was let out to the appellant under the terms of the lease will be determined by the High Court of Gujarat before which the appeal flied by the respondent is pending. We have for the purpose of this appeal held, agreeing with the District Court that the standard rent of the entire building is Rs. 1,200 per mensem. If the cellar is not included in the tenancy, Rs. 100 will have to be deducted and the standard rent will be Rs. 1,100 per mensem.18. The other matter in dispute relates to the space intended to be used for a restaurant. The respondent contended that possession of that room was delivered to the appellant: the appellant denied that it was so delivered. It is common ground that it was part of the premises leased. Enquiry into the question whether by reason of default on the part of the landlord in delivering possession of a part of the premises let out under the lease any loss was occasioned to the tenant and to what relief the tenant is entitled on that account is foreign to the determination of standard rent. We, therefore, decline to enter into the question whether possession of the pace intended for use as restaurant was delivered by the respondent to the appellant. The decision of the Courts below on that part of the case is vacated.
### Response:
0
### Explanation:
6. It is somewhat unfortunate that the appeal filed by the respondent has been admitted to the file and is to be heard on the merits, while the appeal filed by the appellant was summarilyare unable to agree with that plea.It is true that in the body of S. 100 of the Code of Civil Procedure the Legislature has not used the expression "second appeal". That expression, however, occurs in the marginal note of S. 100 and in the text of Ss. 101, 102 andare of the view that a second appeal under S. 28 of the Act may be entertained by the High Court within the limits prescribed by S. 100 of the Code of Civil Procedure, and it is not open to the parties to demand reappraisal of the evidence by the High Court on the ground that the District Court has erred in its view of the evidence. The High Court of Bombay was apparently of the view that no question of law arose in the appeal, and it was competent to dismiss the appeal under O. 41, R. 11 (1) of thedo not think that the Courts below committed any error of law or misconceived the evidence in holding that only Rs.be disallowed out of the total cost of construction on the round that they could not reasonably enter thethat would be a wholly faulty method of valuation. Rent received from a structure, is determined not merely by the nature of the structure and the accommodation provided thereby, but also by the situation and the amenities provided by the land on which the structure stands. A building when let out forms a composite unit with the land on which it stands, and the rent received from the buildings cannot be wholly attributed to the building. The respondent purchased the property with a view to pull down the houses thereon and to put up a building adapted for use as a cinematograph theatre. It is true that some rent was recovered from the tenants before the structures were pulled down. But since the respondent purchased the land and the buildings for putting up a new building thereon, he may reasonably be regarded as having paid for the property purchased the value of the land and of the debris of the superstructures. The debris which by sale fetched Rs.has been given credit for in arriving at the total cost of the theatre.15. It is also worthy of note that one Masataram a consulting architect estimated the cost of the structure to be Rupeesat the rates prevailing in 1950. He stated that the prices prevailing in 1954 when he gave evidence were a little lower than the prices prevailing in 19.50, though in respect of certain items the prices may have gone up." The Trial Court and the District Court regarded his evidence as reliable, but having regard to the fact that in constructing the theatre the respondent had used somematerial, the Courts below held that the cost of the structure was truly shown by the accounts of the respondent, and that conclusion must beis true that in the city of Bhavnagar no municipal taxes and rates were, at the material time, Charged by the Municipality, and, therefore, some adjustment would have to be made in ascertaining the percentage of gross return on the investment in determining standard rent. It is common ground that charges for water supply are made by the Municipality. There is, however, no evidence on the record to show as to what the rates for water supplied by the Municipality were. It was faintly suggested by counsel for the appellant that the water charges are payable by the tenant, but there is nothing to support that contention. The appellate Court has, on a consideration of the evidence, come to the conclusion that an overall rate of 7 per cent on the investment for the building and land may be regarded in the town of Bhavnager as an adequate return to the landlord. What rate of return in respect of the landed property may be regarded as reasonable in determining the standard rent under S. 11 of the Act depends upon certain variable factors. Normal expected yield from immovable property in the locality, return from alternative investments, municipal and other charges, the use to which the property is to be put, its condition, repairs it needs to keep it in tenantable condition and a host of other related circumstances must enter into the determination. On a review of the reasons given, it cannot be said that the District Court committed any error of principal in coming to the conclusion that 7 per cent gross return on the cost of construction should be regarded as an adequate return from the property in the town of Bhavnagar which is utilized for a cinematographhave for the purpose of this appeal held, agreeing with the District Court that the standard rent of the entire building is Rs. 1,200 per mensem. If the cellar is not included in the tenancy, Rs. 100 will have to be deducted and the standard rent will be Rs. 1,100 per mensem.It is common ground that it was part of the premises leased. Enquiry into the question whether by reason of default on the part of the landlord in delivering possession of a part of the premises let out under the lease any loss was occasioned to the tenant and to what relief the tenant is entitled on that account is foreign to the determination of standard rent. We, therefore, decline to enter into the question whether possession of the pace intended for use as restaurant was delivered by the respondent to the appellant. The decision of the Courts below on that part of the case is vacated.
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Mahadeo Vs. Shantibhai And Ors
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be required with effect from the commencement of the academic session 1967-68 i.e. from Monday, the 17th July 1967.The letter went on to add:"Your tenure as part-time Professor of Law in Madhav College, Ujjain has therefore ceased with effect from June 30, 1967." 11. By letter dated 31st July 1967 the Registrar of the University intimated the Secretary to the Government of Madhya Pradesh Education Department, that under instruction dated 31st March 1967 the University had been asked to maintain the status quo with respect to teachers transferred to the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to the contrary, the appellant also continued to remain in the service of the University. Finally, the letter recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers, the appellant had been informed that his services would not be required after 30th June 1967. It was during the hearing of the election petition that a letter dated 9th October 1967 came to be written by the Under Secretary to the Government of Madhya Pradesh, Education Department to the Registrar, Vikram University that the appellant had ceased to be in Government service with effect from 30th June 1964 in terms .of the rule prescribing 58 years as the age of superannuation for Government servants. 12. The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service after June 30, 1964. It is all the more surprising that the letter of October 9, 1967 should be written at such an opportune moment when more than two years before the Under Secretary was himself enquiring of the Principal as to whether the appellant had been confirmed in his existing post. 13. Learned counsel for the appellant contended that after attaining the age of 58 the appellant must be treated as not in ernment service and as the University had the power to manage the affairs of the College, in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellants emp1oyment one under the Government. On the other hand, it was contended by learned counsel for the resportdent that we should ignore these deeming provisions of the Fundamental Rules and hold that. as a matter of fact the appellant had continued in service till 1967 notwithstanding the Fundamental Rules of the Madhya Pradesh Government and the rules of the University which permitted the termination of his service before February 1967 but which were never resorted to. For the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at Ujjain. President Shri M.C. Joshi, Advocate, Ujjain. Assessors. 1. Shri Chand Narayan Rajdan, Retired Traffic Superintendent Agar Light Railway Ujjain. 14. The High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court. 15.
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0[ds]The word office according to Websters New World Dictionary means, inter alia, "a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Government, Corporation etc." According to Jowitts Law Dictionary, it means the right and duty to exercise an employment such as an office of a trustee, executor, guardian, director, Sheriff, Judge etc. The expression office of profit finds a place in an old English Act, namely, the Act of Settlement, 1701, s. 3 of which provided that "no person having an office or place of profit under the Crown could be a member of the House of Commons."In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default. So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly of Madhya PradeshFor the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at UjjainThe High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court.
| 0 | 4,403 | 818 |
### 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:
be required with effect from the commencement of the academic session 1967-68 i.e. from Monday, the 17th July 1967.The letter went on to add:"Your tenure as part-time Professor of Law in Madhav College, Ujjain has therefore ceased with effect from June 30, 1967." 11. By letter dated 31st July 1967 the Registrar of the University intimated the Secretary to the Government of Madhya Pradesh Education Department, that under instruction dated 31st March 1967 the University had been asked to maintain the status quo with respect to teachers transferred to the University until final terms and conditions of transfer were eftected and in the absence of any Government orders to the contrary, the appellant also continued to remain in the service of the University. Finally, the letter recorded that in terms of the rules of the University fixing 60 years as the age of superannuation for teachers, the appellant had been informed that his services would not be required after 30th June 1967. It was during the hearing of the election petition that a letter dated 9th October 1967 came to be written by the Under Secretary to the Government of Madhya Pradesh, Education Department to the Registrar, Vikram University that the appellant had ceased to be in Government service with effect from 30th June 1964 in terms .of the rule prescribing 58 years as the age of superannuation for Government servants. 12. The last letter may legitimately be subject to a comment that efforts were being made to establish that the appellant had ceased to be in Government service after June 30, 1964. It is all the more surprising that the letter of October 9, 1967 should be written at such an opportune moment when more than two years before the Under Secretary was himself enquiring of the Principal as to whether the appellant had been confirmed in his existing post. 13. Learned counsel for the appellant contended that after attaining the age of 58 the appellant must be treated as not in ernment service and as the University had the power to manage the affairs of the College, in effect it retained him in exercise of its rights under the above mentioned rule but this would not make the appellants emp1oyment one under the Government. On the other hand, it was contended by learned counsel for the resportdent that we should ignore these deeming provisions of the Fundamental Rules and hold that. as a matter of fact the appellant had continued in service till 1967 notwithstanding the Fundamental Rules of the Madhya Pradesh Government and the rules of the University which permitted the termination of his service before February 1967 but which were never resorted to. For the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at Ujjain. President Shri M.C. Joshi, Advocate, Ujjain. Assessors. 1. Shri Chand Narayan Rajdan, Retired Traffic Superintendent Agar Light Railway Ujjain. 14. The High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court. 15.
### Response:
0
### Explanation:
The word office according to Websters New World Dictionary means, inter alia, "a function or duty assigned to someone, specially as an essential part of his work or position, a position of authority or trust especially in a Government, Corporation etc." According to Jowitts Law Dictionary, it means the right and duty to exercise an employment such as an office of a trustee, executor, guardian, director, Sheriff, Judge etc. The expression office of profit finds a place in an old English Act, namely, the Act of Settlement, 1701, s. 3 of which provided that "no person having an office or place of profit under the Crown could be a member of the House of Commons."In our view, although it was open to the appellant to terminate the engagement at any time and he might even commit a breach of etiquette by accepting a brief against the Railway without formally putting an end to the engagement, that would not detract from the position that he was in duty bound to work the Railway Administration and see that its causes did not suffer by default. So long as the engagement was not put an end to, he was holding an office of profit in the Railway Administration, and as such was disqualified for being elected to the Legislative Assembly of Madhya PradeshFor the purpose of this case, it is nor necessary to express any final opinion on the joint except to say that the contention put forward on behalf of the appellant seems to have great force. The appellant was only a temporary Government servant. lie had never become permanent. lie really had no lien on the post. He was sent on deputation to the University in 1959 and in the ordinary course of things such deputation would have come to an end in 1964 when he attained the are of superannuation. It was really for the Umversity. to ignore the fact. that he had been superannuated.in 1964 and.continue him in service, but that would be an act of the University and not of the Government. There is room for doubt as to whether in the circumstances mentioned above the appellant was holding an office Of profit under the Government as a Lecturer in law in the Madhav College by reason of the fact that no order was passed in respect of him at any time either by the Government or by the University until after the filing of the election petition.The last point of disqualification alleged was whether the appellant could be said to have been a holder of an office of profit by reason of his appointment as Chairman of the Improvement Trust Tribunal in Ujjain City. The appointment was gazetted in October 1966 by a notification to the effect that the State Government was pleased to constitute the Tribunal as specified below for the purpose of s. 73 of the Madhya Pradesh Improvement Trusts Act, 1960, for acquisition of land at UjjainThe High Court in its judgment noted that there was no clear positive indication that the appellant had been consulted beforehand. There is certainly no evidence that he had acted on the appointment or that he had ever taken charge of the office. The finding of the High Court is that when the order was delivered at his house, the appellant took it and did not inform anybody connected with the Trust, or as for that matter, the Government, that the order had come to him by mistake and he was not "M. C. Joshi" as mentioned in the notification. The High Court gave, the appellant what it terms "the benefit of doubt" on this alleged disqualification. But quite apart from the mistake as regards the name, it is difficult to hold that the appellant held the office of profit as the President of the Tribunal. As noted already, he had never been approached for the purpose nor had he ever signified his willingness to act under the terms of the notification. He had never taken charge of any office nor had he ever discharged any function with regard to the office. In the circumstances, it would hardly be right to hold that he was holding an office of profit under the Government. On the materials before it the High Court was not prepared to hold that the appellant was the holder of an office of profit and on the facts of this case, we do not feel called upon to disturb the finding. of the High Court.
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Jiwan Singh Vs. Rajendra Prasad and Anr
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Rent Control Officer committed an error of law in not allotting the shops to the 1st respondent as the landlord had given his consent for allotting the shops to the 1st respondent although he revoked the consent later on and hence the allotment order passed in favour of the appellant was in contravention of the rules and without affording a reasonable opportunity to the 1st respondent of being heard. He, therefore passed a decree in favour of the 1st respondent holding that the order of allotment dated 27-1-1967 was illegal and restraining the appellant by an injunction from disturbing the possession of the 1st respondent.5. On appeal by the appellant the Judge, Small Causes Court reversed the decree passed by the Additional Munsiff and dismissed the suit.6. The learned Judge Small Causes Court, held that the landlord having intimated to the Rent Control Officer under Section 7 (1) (a) of the Act on 20-12-l966 that the accommodation because vacant, the Rent Control Officer was obliged to pass an order of allotment in favour of the nominee of the landlord under R. 4, as he did not pass an order of allotment within 30 days of the intimation, and therefore, the order of allotment in favour of the appellant passed on 27-1-1967 was valid and no occasion arose for considering the application of the 1st respondent for allotment, nor was there any necessity to hear the 1st respondent on his application. He, therefore, set aside the decree passed by the Additional Munsiff.7. The High Court reversed this decree on the basis of its finding that the shops became vacant when Tandon delivered possession of the same to the landlord on 12-9-1966 and since the landlord did not intimate in writing to the Rent Control Officer about the vacancy within 7 days after the accommodation became vacant, the Rent Control Officer was not entitled to act under Rule 4 of the Rules framed under the Act which alone obliged him to allot the shops to the nominee of the landlord in preference to the 1st respondent and. therefore, he committed a jurisdictional error in making the order of allotment to the appellant and the suit was therefore maintainable.8. In order to appreciate the question, which arises for decision, it is necessary to read S. 7 (1) (a) of the Act as well as rule 4 made under the rule-making power conferred under Section 17 of the Act. Section 7 (11 (a reads:"Every landlord shall, within seven days after an accommodation becomes vacant by his ceasing to occupy it, or by the tenant vacating it, or otherwise ceasing to occupy it, or by termination of tenancy or by release from requisition or in any other manner. whatsoever, give notice of the vacancy in writing to the District Magistrates."Rule 4 provides as under :"Landlords right to let - if the landlord, receives no notice from the District Magistrate of the intimation given by the landlord under S. 1 (1) (a), the landlord may nominate a tenant and the District Magistrate shall allot the accommodation to his nominee unless for reasons to be recorded in writing he forthwith allots the accommodation to other person."9. The point for consideration is whether the notice given by the landlord on 20-12-1966 can be said to be a notice as provided in S. 7 (1) (a) of the Act and whether the provisions of Rule 4 were attracted to the facts of the case.10. Section 7 (1) (a) would show that the landlord was obliged to give notice in writing to the District Magistrate of the vacancy within 7 days after the accommodation became vacant; and Rule 4 can come into play only on the fulfilment of that obligation by the landlord under S. 7 (1) (a). The learned Additional Munsif found that the accommodation fell vacant on 12-9-1966. In appeal, the Small Causes Court assumed that Tandon vacated the shops on 20-9-1966. Whichever date is taken as the date on which the accommodation became vacant, the landlord did not give notice in writing about the vacancy within seven days after the accommodation became vacant as the notice was given only on 20-12-1966.It is only if the landlord gives the notice in writing of the vacancy within the time specified in S. 7 (1) (a) that Rule 4 would come into operation. In other words, notice in writing within the time specified in S. 7 (1) (a) intimating that the accommodation has become vacant is a condition-precedent to the exercise of jurisdiction under Rule 4. The landlord cannot without complying with the provisions of S. 7 (1) (a) claim that the Rent Control Officer shall allot the premises to his nominee. It is therefore clear that the Rent Control Officer went wrong in thinking that R. 4 obliged him to allot the premises to the nominee of the landlord as he did not make the allotment within 30 days of the receipt of the notice. As the Rent Control Officer allotted the premises to the appellant on the basis that Rule 4 obliged him to do so, and, as we hold that rule did not come into play since the landlord did not give notice in writing within seven days after the accommodation became vacant, the Rent Control Officer committed an error of jurisdiction in allotting the premises to-the appellant by his order dated 27-1-1967. The High Court was, therefore, right in holding that the order was ultra vires the power of the Rent Control Officer, and that the proceedings to evict the 1st respondent under S. 7A were incompetent.In these circumstances we would, direct the Rent Control Officer to consider the application filed by the 1st respondent on 19-9-1966 for allotment of the shops to him as also the application of the appellant for the same purpose. after giving them an opportunity of being, heard, and pass the proper order; and in the light of that order take any proceedings, if necessary, under, S. 7A of the Act.
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1[ds]6. The learned Judge Small Causes Court, held that the landlord having intimated to the Rent Control Officer under Section 7 (1) (a) of the Act on 20-12-l966 that the accommodation because vacant, the Rent Control Officer was obliged to pass an order of allotment in favour of the nominee of the landlord under R. 4, as he did not pass an order of allotment within 30 days of the intimation, and therefore, the order of allotment in favour of the appellant passed on 27-1-1967 was valid and no occasion arose for considering the application of the 1st respondent for allotment, nor was there any necessity to hear the 1st respondent on his application. He, therefore, set aside the decree passed by the Additional Munsiff.7. The High Court reversed this decree on the basis of its finding that the shops became vacant when Tandon delivered possession of the same to the landlord on 12-9-1966 and since the landlord did not intimate in writing to the Rent Control Officer about the vacancy within 7 days after the accommodation became vacant, the Rent Control Officer was not entitled to act under Rule 4 of the Rules framed under the Act which alone obliged him to allot the shops to the nominee of the landlord in preference to the 1st respondent and. therefore, he committed a jurisdictional error in making the order of allotment to the appellant and the suit was therefore maintainable.Section 7 (1) (a) would show that the landlord was obliged to give notice in writing to the District Magistrate of the vacancy within 7 days after the accommodation became vacant; and Rule 4 can come into play only on the fulfilment of that obligation by the landlord under S. 7 (1) (a). The learned Additional Munsif found that the accommodation fell vacant on 12-9-1966. In appeal, the Small Causes Court assumed that Tandon vacated the shops on 20-9-1966. Whichever date is taken as the date on which the accommodation became vacant, the landlord did not give notice in writing about the vacancy within seven days after the accommodation became vacant as the notice was given only on 20-12-1966.It is only if the landlord gives the notice in writing of the vacancy within the time specified in S. 7 (1) (a) that Rule 4 would come into operation. In other words, notice in writing within the time specified in S. 7 (1) (a) intimating that the accommodation has become vacant is a condition-precedent to the exercise of jurisdiction under Rule 4. The landlord cannot without complying with the provisions of S. 7 (1) (a) claim that the Rent Control Officer shall allot the premises to his nominee. It is therefore clear that the Rent Control Officer went wrong in thinking that R. 4 obliged him to allot the premises to the nominee of the landlord as he did not make the allotment within 30 days of the receipt of the notice. As the Rent Control Officer allotted the premises to the appellant on the basis that Rule 4 obliged him to do so, and, as we hold that rule did not come into play since the landlord did not give notice in writing within seven days after the accommodation became vacant, the Rent Control Officer committed an error of jurisdiction in allotting the premises to-the appellant by his order dated 27-1-1967. The High Court was, therefore, right in holding that the order was ultra vires the power of the Rent Control Officer, and that the proceedings to evict the 1st respondent under S. 7A were incompetent.In these circumstances we would, direct the Rent Control Officer to consider the application filed by the 1st respondent on 19-9-1966 for allotment of the shops to him as also the application of the appellant for the same purpose. after giving them an opportunity of being, heard, and pass the proper order; and in the light of that order take any proceedings, if necessary, under, S. 7A of the Act.
| 1 | 1,752 | 734 |
### 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:
Rent Control Officer committed an error of law in not allotting the shops to the 1st respondent as the landlord had given his consent for allotting the shops to the 1st respondent although he revoked the consent later on and hence the allotment order passed in favour of the appellant was in contravention of the rules and without affording a reasonable opportunity to the 1st respondent of being heard. He, therefore passed a decree in favour of the 1st respondent holding that the order of allotment dated 27-1-1967 was illegal and restraining the appellant by an injunction from disturbing the possession of the 1st respondent.5. On appeal by the appellant the Judge, Small Causes Court reversed the decree passed by the Additional Munsiff and dismissed the suit.6. The learned Judge Small Causes Court, held that the landlord having intimated to the Rent Control Officer under Section 7 (1) (a) of the Act on 20-12-l966 that the accommodation because vacant, the Rent Control Officer was obliged to pass an order of allotment in favour of the nominee of the landlord under R. 4, as he did not pass an order of allotment within 30 days of the intimation, and therefore, the order of allotment in favour of the appellant passed on 27-1-1967 was valid and no occasion arose for considering the application of the 1st respondent for allotment, nor was there any necessity to hear the 1st respondent on his application. He, therefore, set aside the decree passed by the Additional Munsiff.7. The High Court reversed this decree on the basis of its finding that the shops became vacant when Tandon delivered possession of the same to the landlord on 12-9-1966 and since the landlord did not intimate in writing to the Rent Control Officer about the vacancy within 7 days after the accommodation became vacant, the Rent Control Officer was not entitled to act under Rule 4 of the Rules framed under the Act which alone obliged him to allot the shops to the nominee of the landlord in preference to the 1st respondent and. therefore, he committed a jurisdictional error in making the order of allotment to the appellant and the suit was therefore maintainable.8. In order to appreciate the question, which arises for decision, it is necessary to read S. 7 (1) (a) of the Act as well as rule 4 made under the rule-making power conferred under Section 17 of the Act. Section 7 (11 (a reads:"Every landlord shall, within seven days after an accommodation becomes vacant by his ceasing to occupy it, or by the tenant vacating it, or otherwise ceasing to occupy it, or by termination of tenancy or by release from requisition or in any other manner. whatsoever, give notice of the vacancy in writing to the District Magistrates."Rule 4 provides as under :"Landlords right to let - if the landlord, receives no notice from the District Magistrate of the intimation given by the landlord under S. 1 (1) (a), the landlord may nominate a tenant and the District Magistrate shall allot the accommodation to his nominee unless for reasons to be recorded in writing he forthwith allots the accommodation to other person."9. The point for consideration is whether the notice given by the landlord on 20-12-1966 can be said to be a notice as provided in S. 7 (1) (a) of the Act and whether the provisions of Rule 4 were attracted to the facts of the case.10. Section 7 (1) (a) would show that the landlord was obliged to give notice in writing to the District Magistrate of the vacancy within 7 days after the accommodation became vacant; and Rule 4 can come into play only on the fulfilment of that obligation by the landlord under S. 7 (1) (a). The learned Additional Munsif found that the accommodation fell vacant on 12-9-1966. In appeal, the Small Causes Court assumed that Tandon vacated the shops on 20-9-1966. Whichever date is taken as the date on which the accommodation became vacant, the landlord did not give notice in writing about the vacancy within seven days after the accommodation became vacant as the notice was given only on 20-12-1966.It is only if the landlord gives the notice in writing of the vacancy within the time specified in S. 7 (1) (a) that Rule 4 would come into operation. In other words, notice in writing within the time specified in S. 7 (1) (a) intimating that the accommodation has become vacant is a condition-precedent to the exercise of jurisdiction under Rule 4. The landlord cannot without complying with the provisions of S. 7 (1) (a) claim that the Rent Control Officer shall allot the premises to his nominee. It is therefore clear that the Rent Control Officer went wrong in thinking that R. 4 obliged him to allot the premises to the nominee of the landlord as he did not make the allotment within 30 days of the receipt of the notice. As the Rent Control Officer allotted the premises to the appellant on the basis that Rule 4 obliged him to do so, and, as we hold that rule did not come into play since the landlord did not give notice in writing within seven days after the accommodation became vacant, the Rent Control Officer committed an error of jurisdiction in allotting the premises to-the appellant by his order dated 27-1-1967. The High Court was, therefore, right in holding that the order was ultra vires the power of the Rent Control Officer, and that the proceedings to evict the 1st respondent under S. 7A were incompetent.In these circumstances we would, direct the Rent Control Officer to consider the application filed by the 1st respondent on 19-9-1966 for allotment of the shops to him as also the application of the appellant for the same purpose. after giving them an opportunity of being, heard, and pass the proper order; and in the light of that order take any proceedings, if necessary, under, S. 7A of the Act.
### Response:
1
### Explanation:
6. The learned Judge Small Causes Court, held that the landlord having intimated to the Rent Control Officer under Section 7 (1) (a) of the Act on 20-12-l966 that the accommodation because vacant, the Rent Control Officer was obliged to pass an order of allotment in favour of the nominee of the landlord under R. 4, as he did not pass an order of allotment within 30 days of the intimation, and therefore, the order of allotment in favour of the appellant passed on 27-1-1967 was valid and no occasion arose for considering the application of the 1st respondent for allotment, nor was there any necessity to hear the 1st respondent on his application. He, therefore, set aside the decree passed by the Additional Munsiff.7. The High Court reversed this decree on the basis of its finding that the shops became vacant when Tandon delivered possession of the same to the landlord on 12-9-1966 and since the landlord did not intimate in writing to the Rent Control Officer about the vacancy within 7 days after the accommodation became vacant, the Rent Control Officer was not entitled to act under Rule 4 of the Rules framed under the Act which alone obliged him to allot the shops to the nominee of the landlord in preference to the 1st respondent and. therefore, he committed a jurisdictional error in making the order of allotment to the appellant and the suit was therefore maintainable.Section 7 (1) (a) would show that the landlord was obliged to give notice in writing to the District Magistrate of the vacancy within 7 days after the accommodation became vacant; and Rule 4 can come into play only on the fulfilment of that obligation by the landlord under S. 7 (1) (a). The learned Additional Munsif found that the accommodation fell vacant on 12-9-1966. In appeal, the Small Causes Court assumed that Tandon vacated the shops on 20-9-1966. Whichever date is taken as the date on which the accommodation became vacant, the landlord did not give notice in writing about the vacancy within seven days after the accommodation became vacant as the notice was given only on 20-12-1966.It is only if the landlord gives the notice in writing of the vacancy within the time specified in S. 7 (1) (a) that Rule 4 would come into operation. In other words, notice in writing within the time specified in S. 7 (1) (a) intimating that the accommodation has become vacant is a condition-precedent to the exercise of jurisdiction under Rule 4. The landlord cannot without complying with the provisions of S. 7 (1) (a) claim that the Rent Control Officer shall allot the premises to his nominee. It is therefore clear that the Rent Control Officer went wrong in thinking that R. 4 obliged him to allot the premises to the nominee of the landlord as he did not make the allotment within 30 days of the receipt of the notice. As the Rent Control Officer allotted the premises to the appellant on the basis that Rule 4 obliged him to do so, and, as we hold that rule did not come into play since the landlord did not give notice in writing within seven days after the accommodation became vacant, the Rent Control Officer committed an error of jurisdiction in allotting the premises to-the appellant by his order dated 27-1-1967. The High Court was, therefore, right in holding that the order was ultra vires the power of the Rent Control Officer, and that the proceedings to evict the 1st respondent under S. 7A were incompetent.In these circumstances we would, direct the Rent Control Officer to consider the application filed by the 1st respondent on 19-9-1966 for allotment of the shops to him as also the application of the appellant for the same purpose. after giving them an opportunity of being, heard, and pass the proper order; and in the light of that order take any proceedings, if necessary, under, S. 7A of the Act.
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F.A. Sapa Etc. Etc Vs. Singora And Ors. Etc
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We are afraid this criticism is not wholly correct because the High Court has also observed that `no specific omission or deviation in the copy from the original was pointed out nor was it shown that the respondents were misled on that account. We have also closely scrutinised the application made by the returned candidate in the High Court and except for a general allegation that the annexure served along with the petition was not a true copy, no specific allegation is found. However, in the special leave petition filed in this Court question No. (vi) states that certain pages were missing from the copy of the annexure served on the returned candidate. Then in paragraph 11 it is averred that pages 15 and 16 of Annexure II were missing. Since no such specific allegation was made in the application filed by the returned candidate, the High Court had no occasion to go into this allegation and to ascertain if the missing pages contained material forming an integral part of the election petition. We would not like to embark upon an inquiry in this behalf and would leave it to the appellants to agitate the question before the High Court. We would request the High Court to examine the contention on merits, if raised, and answer the same in accordance with law. Although we have come to the conclusion that the defect in verification is not fatal and can be cured, no attempt has been made by the election petitioners to cure the same nor has the High Court directed the petitioners to do so. By way of a sample our attention was draw n to the election petition No. 7 of 1989 which has given rise to Civil Appeal No. 179 of 1991. The said petition had 47 paragraphs besides the prayer clause. The verification clause shows that paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36 , 38, 41 to 47 of the election petition are on knowledge whereas paragraphs 7 to 15, 20, to 24 , 26, 27, 29, 32, 34, 37, 40 and 41 are on information received and believed to be true. It will be seen from the above that paragraphs 3, 6, 16, 17, 25, 3 1 and 39 are not verified at all. It was submitted by counsel for the appellants that paragraph 3 contained vital allegations regarding corrupt practice and since that paragraph has not been verified at all, the appellant is likely to be handicapped at the trial. It was contended that such was the position in as many as six petitions if not more. Further some of the paragraphs, e.g., 41 are verified under both heads of the verification clause, thereby causing confusion. In the affidavit sworn in compliance of the proviso to section 83(1) it is stated that particulars and details of corrupt practice are contained in paragraphs 4 to 40 of the election petition. Then the petitioner states that what he has alleged by way of corrupt practice in the election petition is correct `to the best of my knowledge and to the information received by e and believed by me to be true. It is thus not clear which allegation of corrupt practice is based on his knowledge and which information he believes to be true. Besides when this affirmation is compared with the verification clause of the election petition, the confusion is worst confounded. Similar is the case with the verification of the annexures.There, therefore, considerable force in the submission of the learned counsel for the appellants that even if the High Court concluded that the defect in verification/affirmation was not fatal, the High Court ought to have directed the petitioners to cure the defects within the time stipulated by it so that the appellants would know the exact position before the trial and would not be taken by surprise. We think the High Court committed an error in failing to give appropriate directions in the matter. More or less similar defects are also found in the verification/affirmation clause in the other election petitions/affidavits. We would, therefore, request the High Court to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law. The High Court has applied the correct test while permitting the amendments. The High Court has rightly pointed out that the power conferred by section 86(5) cannot be exercised to allow and amendment which will have the effect of introducing a corrupt practice not previously alleged in the petition. If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds, the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 86(5) of the R.P. Act. It was on this correct understanding of the legal position that the High Court scrutinised the amendment application. It was not shown at the hearing of these appeals that any particular averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove the inconsistencies.
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1[ds]The High Court has applied the correct test while permitting the amendments. The High Court has rightly pointed out that the power conferred by section 86(5) cannot be exercised to allow and amendment which will have the effect of introducing a corrupt practice not previously alleged in the petition. If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds, the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 86(5) of the R.P. Act. It was on this correct understanding of the legal position that the High Court scrutinised the amendment application. It was not shown at the hearing of these appeals that any particular averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove thea plain reading of this provision it is manifest that it is incumbent on the petitioner to set forth `full particulars of any corrupt he alleges against the returned candidate. This should be accompanied by `as full a statement as is possible of the names of those who have indulged in such corrupt practice and the date and place of the commission thereof. Clause (c) of(1) enjoins that the election petition shall not only be signed but also verified in the manner laid down in the Code. The proviso then prescribes an additional safeguard in cases where corrupt practice is alleged, as in the present case, namely, that the election petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. This provision reflects the anxiety of t he legislature to ensure that allegations of corrupt practice are not lightly made; not only that but it ensures that the responsibility thereof is fixed on the petitioner himself by asking him to swear an affidavit in support thereof. `Prescribed says Section 2(g) means prescribed by rules made under the said Act. Form 25 is the form of the affidavit prescribed by Rule 94A of the Rules. Next subsection (2) of this section provides that any schedule or annexure to the petition shall also be signed and verified in the same manner as the petition itself. Section 84 sets out what relief the petitioner can claim in such an election petition. That brings us to chapter III entitled `Trial of election petitions. Only two sections from this chapter require to be noticed. The first is section 86, the relevant part whereof reads:``86. Trial of electionThe High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or sectionmode for calling in question the election of a returned candidate is by presenting an election petition `in accordance with the provisions of this Part (Section 80). Such a petition has to be presented within 45 days from the date of election of the returned candidate.(3) of section 81 provides that such an election petition must be accompanied by as many copies thereof as there as there are respondents and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. This provision which explains how a copy of an election petition shall be attested, emphasises that such attestation will be under the petitioners own signature. What the contents of an election petition shall be is enumerated in Section 83. It must contain a concise statement of material facts on which the petitioner relies but where a petition is founded on the allegation of corrupt practice, it shall set forth full particulars of the corrupt practice alleged by the petitioner, including as full a statement as possible of the names of the parties who have indulged in such corrupt practice together with the date and place of the commission thereof. Such an election petition as well as every schedule or annexure thereto must be signed by the petitioner and verified in the manner provided by the Code for the verification of pleadings. But, in cases where the petitioner has alleged corrupt practice that is not enough, the proviso demands that the petition shall be accompanied by an affidavit in the prescribed from supporting the allegation of such corrupt practice and the particulars thereof. Therefore, an election petition in which corrupt practice is alleged stands on a different footing from an election petition which does not carry such an allegation. The legislature has taken special care to ensure that ordinary verification will not suffice, it must be supported by an affidavit in the prescribed form.Form 25 has been prescribed for such an affidavit under rule 91A of the Rules. That rule says that the affidavit referred to in the proviso to Section 83(1) shall be in Form 25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition in which allegations of corrupt practice are made are based on his own knowledge and which are based on this information. Section 86(1) then mandates that the High Court `shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of thisis quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements section 81 or section 82. This mandate is, however, qualified by(5) referred to earlier.Election of a returned candid ate can be rendered void on proof of the alleged corrupt practice. In addition thereto he would incur a subsequent disqualification also. This harshness is essential if we want our democratic process to be clean, free and fair. Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy. Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste, creed, community, religion, race, language, etc., are allowed to go unchecked and unpunished.
| 1 | 15,645 | 1,251 |
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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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We are afraid this criticism is not wholly correct because the High Court has also observed that `no specific omission or deviation in the copy from the original was pointed out nor was it shown that the respondents were misled on that account. We have also closely scrutinised the application made by the returned candidate in the High Court and except for a general allegation that the annexure served along with the petition was not a true copy, no specific allegation is found. However, in the special leave petition filed in this Court question No. (vi) states that certain pages were missing from the copy of the annexure served on the returned candidate. Then in paragraph 11 it is averred that pages 15 and 16 of Annexure II were missing. Since no such specific allegation was made in the application filed by the returned candidate, the High Court had no occasion to go into this allegation and to ascertain if the missing pages contained material forming an integral part of the election petition. We would not like to embark upon an inquiry in this behalf and would leave it to the appellants to agitate the question before the High Court. We would request the High Court to examine the contention on merits, if raised, and answer the same in accordance with law. Although we have come to the conclusion that the defect in verification is not fatal and can be cured, no attempt has been made by the election petitioners to cure the same nor has the High Court directed the petitioners to do so. By way of a sample our attention was draw n to the election petition No. 7 of 1989 which has given rise to Civil Appeal No. 179 of 1991. The said petition had 47 paragraphs besides the prayer clause. The verification clause shows that paragraphs 1, 2, 4, 5, 18, 19, 28, 35, 30, 33, 36 , 38, 41 to 47 of the election petition are on knowledge whereas paragraphs 7 to 15, 20, to 24 , 26, 27, 29, 32, 34, 37, 40 and 41 are on information received and believed to be true. It will be seen from the above that paragraphs 3, 6, 16, 17, 25, 3 1 and 39 are not verified at all. It was submitted by counsel for the appellants that paragraph 3 contained vital allegations regarding corrupt practice and since that paragraph has not been verified at all, the appellant is likely to be handicapped at the trial. It was contended that such was the position in as many as six petitions if not more. Further some of the paragraphs, e.g., 41 are verified under both heads of the verification clause, thereby causing confusion. In the affidavit sworn in compliance of the proviso to section 83(1) it is stated that particulars and details of corrupt practice are contained in paragraphs 4 to 40 of the election petition. Then the petitioner states that what he has alleged by way of corrupt practice in the election petition is correct `to the best of my knowledge and to the information received by e and believed by me to be true. It is thus not clear which allegation of corrupt practice is based on his knowledge and which information he believes to be true. Besides when this affirmation is compared with the verification clause of the election petition, the confusion is worst confounded. Similar is the case with the verification of the annexures.There, therefore, considerable force in the submission of the learned counsel for the appellants that even if the High Court concluded that the defect in verification/affirmation was not fatal, the High Court ought to have directed the petitioners to cure the defects within the time stipulated by it so that the appellants would know the exact position before the trial and would not be taken by surprise. We think the High Court committed an error in failing to give appropriate directions in the matter. More or less similar defects are also found in the verification/affirmation clause in the other election petitions/affidavits. We would, therefore, request the High Court to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law. The High Court has applied the correct test while permitting the amendments. The High Court has rightly pointed out that the power conferred by section 86(5) cannot be exercised to allow and amendment which will have the effect of introducing a corrupt practice not previously alleged in the petition. If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds, the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 86(5) of the R.P. Act. It was on this correct understanding of the legal position that the High Court scrutinised the amendment application. It was not shown at the hearing of these appeals that any particular averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove the inconsistencies.
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averment introduced by way of an amendment had the effect of introducing a totally new allegation of corrupt practice not previously pleaded in the election petitions . Yet, if the appellants can point out any inconsistency, the High Court will remove the same.These were all the submissions made before us. We have dealt with them in extenso and have clarified the legal position. We have suggested certain modifications in the impugned orders and have indicated the course of action to be adopted by the High Court. We need not recapitulate the modifications and the future course of action. The impugned order of the High Court in each petition will and modified to the extent it is inconsistent with the legal position explained hereinabove. The High Court will pass appropriate orders to remove thea plain reading of this provision it is manifest that it is incumbent on the petitioner to set forth `full particulars of any corrupt he alleges against the returned candidate. This should be accompanied by `as full a statement as is possible of the names of those who have indulged in such corrupt practice and the date and place of the commission thereof. Clause (c) of(1) enjoins that the election petition shall not only be signed but also verified in the manner laid down in the Code. The proviso then prescribes an additional safeguard in cases where corrupt practice is alleged, as in the present case, namely, that the election petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. This provision reflects the anxiety of t he legislature to ensure that allegations of corrupt practice are not lightly made; not only that but it ensures that the responsibility thereof is fixed on the petitioner himself by asking him to swear an affidavit in support thereof. `Prescribed says Section 2(g) means prescribed by rules made under the said Act. Form 25 is the form of the affidavit prescribed by Rule 94A of the Rules. Next subsection (2) of this section provides that any schedule or annexure to the petition shall also be signed and verified in the same manner as the petition itself. Section 84 sets out what relief the petitioner can claim in such an election petition. That brings us to chapter III entitled `Trial of election petitions. Only two sections from this chapter require to be noticed. The first is section 86, the relevant part whereof reads:``86. Trial of electionThe High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or sectionmode for calling in question the election of a returned candidate is by presenting an election petition `in accordance with the provisions of this Part (Section 80). Such a petition has to be presented within 45 days from the date of election of the returned candidate.(3) of section 81 provides that such an election petition must be accompanied by as many copies thereof as there as there are respondents and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. This provision which explains how a copy of an election petition shall be attested, emphasises that such attestation will be under the petitioners own signature. What the contents of an election petition shall be is enumerated in Section 83. It must contain a concise statement of material facts on which the petitioner relies but where a petition is founded on the allegation of corrupt practice, it shall set forth full particulars of the corrupt practice alleged by the petitioner, including as full a statement as possible of the names of the parties who have indulged in such corrupt practice together with the date and place of the commission thereof. Such an election petition as well as every schedule or annexure thereto must be signed by the petitioner and verified in the manner provided by the Code for the verification of pleadings. But, in cases where the petitioner has alleged corrupt practice that is not enough, the proviso demands that the petition shall be accompanied by an affidavit in the prescribed from supporting the allegation of such corrupt practice and the particulars thereof. Therefore, an election petition in which corrupt practice is alleged stands on a different footing from an election petition which does not carry such an allegation. The legislature has taken special care to ensure that ordinary verification will not suffice, it must be supported by an affidavit in the prescribed form.Form 25 has been prescribed for such an affidavit under rule 91A of the Rules. That rule says that the affidavit referred to in the proviso to Section 83(1) shall be in Form 25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition in which allegations of corrupt practice are made are based on his own knowledge and which are based on this information. Section 86(1) then mandates that the High Court `shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of thisis quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements section 81 or section 82. This mandate is, however, qualified by(5) referred to earlier.Election of a returned candid ate can be rendered void on proof of the alleged corrupt practice. In addition thereto he would incur a subsequent disqualification also. This harshness is essential if we want our democratic process to be clean, free and fair. Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy. Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste, creed, community, religion, race, language, etc., are allowed to go unchecked and unpunished.
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Banwari Ram Vs. State of U.P
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the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns. On the materials on record the High Court has come to the conclusion that not only the persons concerned were members of unlawful assembly but also their presence at the spot constituted sufficient encouragement for other members of the said assembly who indiscriminately started firing at the Army jawans. It is well settled that if offence is committed by some members of an unlawful assembly then the other members of the assembly are also liable for the offence under Section 149 of the Indian Penal Code. We have also carefully scrutinised the judgment of the learned Sessions Judge as well as that of the High Court and we are of the considered opinion that the High Court was wholly justified in reversing an order of acquittal passed by the learned Sessions Judge and we do not find any error of law therein. 6. Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully re- appreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest or post-mortem in respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an event non-holding of any post-mortem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant-Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for the appellant-Shambhu Singh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does not re-appreciate the evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.
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0[ds]We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theSingh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for theSingh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does notthe evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully reappreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest orin respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an eventtem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them.We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.
| 0 | 3,789 | 951 |
### Instruction:
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the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns. On the materials on record the High Court has come to the conclusion that not only the persons concerned were members of unlawful assembly but also their presence at the spot constituted sufficient encouragement for other members of the said assembly who indiscriminately started firing at the Army jawans. It is well settled that if offence is committed by some members of an unlawful assembly then the other members of the assembly are also liable for the offence under Section 149 of the Indian Penal Code. We have also carefully scrutinised the judgment of the learned Sessions Judge as well as that of the High Court and we are of the considered opinion that the High Court was wholly justified in reversing an order of acquittal passed by the learned Sessions Judge and we do not find any error of law therein. 6. Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully re- appreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest or post-mortem in respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an event non-holding of any post-mortem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant-Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for the appellant-Shambhu Singh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does not re-appreciate the evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.
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### Explanation:
We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theSingh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for theSingh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does notthe evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully reappreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest orin respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an eventtem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them.We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.
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Orient Paper & Industries Ltd Vs. State Of M.P.
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change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473 ). Manufacture is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418 ).10. The prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488 ).11. To put differently, the test to determine whether a particular activity amounts to manufacture or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes manufacture takes place and liability to duty is attracted. Etymologically the word manufacture properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314 ).12. These aspects were highlighted in Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai (2005 (1) SCC 385 ). The stand of leaned counsel for the respondents that the levy is under two circumstances i.e. (i) on the buying and selling of notified agricultural produce when brought within the State into the market area (ii) on the notified agriculture produce when brought from within the State or from outside the State into the market areas. The case at hand, it is submitted, relates to the second category.13. Had it been only that the goods notified are brought into the market area to be covered by the second category then the stand of the respondents would have been acceptable. But the further condition it must be "used for processing" shows that the emphasis is on end-user. In this case that makes the difference. Therefore, the appellant is correct in its stand that levy on the notified agriculture produce being brought within market area where end-user is manufacture does not attract levy of market fee. Learned counsel for the respondents submitted that by accepting the interpretation suggested by them, the object of the statute shall be achieved. 14. When the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, Courts are bound to give effect to that meaning irrespective of consequences. (See: State of Jharkhand v. Govind Singh AIR 2005 SC 294 , Nathi Devi v. Radha Devi Gupta (2005 (2) SCC 271 ). 15. In Sussex Peerage case (1844) 11 CI&F 85, at page 143 Tindal C.J. observed as follows: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver." When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. 16. As observed in Nathi Devis case (supra) if the words used are capable of one construction, only then, it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the sections of the Act.
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1[ds]8. The distinction between manufacturing and processing has been examined by this Court in several cases. According to Oxford Dictionary one of the meanings of the word process is "a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result". The activity contemplated by the definition is perfectly general requiring only the continuous or quick succession. It is not one of the requisites that the activity should involve some operation on some material in order to effect its conversion to some particular stage. There is nothing in the natural meaning of the word process to exclude its application to handling. There may be a process, which consists only in handling and there may be a process, which involves no handling or not merely handling but use or also use. It may be a process involving the handling of the material and it need not be a process involving the use of material. The activity may be subordinate but one in relation to the further process of manufacture. Any activity or operation, which is the essential requirement and is so related to the further operations for the end result, would also be a process in or in relation to manufacture. (See: C.C.E. v. Rajasthan State Chemical Works (1991) 4 SCC 473 ).9. In Blacks Law Dictionary, (5th Edition), the word manufacture has been defined as, "The process or operation of making goods or any material produced by hand, by machinery or by other agency; by the hand, by machinery, or by art. The production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine". Thus by manufacture something is produced and brought into existence which is different from that out of which it is made in the sense that the thing produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties. (See Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. M/s. Coco Fibres (1992 Supp. (1) SCC 290). Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end result of one or more processes through which the original commodities are made to pass. The nature and extent of processing may vary from one class to another. There may be several stages of processing, a different kind of processing at each stage. With each process suffered the original commodity experiences a change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473 ). Manufacture is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418 ).10. The prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488 ).11. To put differently, the test to determine whether a particular activity amounts to manufacture or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes manufacture takes place and liability to duty is attracted. Etymologically the word manufacture properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314 ).12. These aspects were highlighted in Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai (2005 (1) SCC 385 ). The stand of leaned counsel for the respondents that the levy is under two circumstances i.e. (i) on the buying and selling of notified agricultural produce when brought within the State into the market area (ii) on the notified agriculture produce when brought from within the State or from outside the State into the market areas. The case at hand, it is submitted, relates to the second category.13. Had it been only that the goods notified are brought into the market area to be covered by the second category then the stand of the respondents would have been acceptable. But the further condition it must be "used for processing" shows that the emphasis is on end-user. In this case that makes the difference. Therefore, the appellant is correct in its stand that levy on the notified agriculture produce being brought within market area where end-user is manufacture does not attract levy of market fee. Learned counsel for the respondents submitted that by accepting the interpretation suggested by them, the object of the statute shall be achieved.As observed in Nathi Devis case (supra) if the words used are capable of one construction, only then, it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the sections of the Act.
| 1 | 3,309 | 1,473 |
### 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:
change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473 ). Manufacture is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418 ).10. The prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488 ).11. To put differently, the test to determine whether a particular activity amounts to manufacture or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes manufacture takes place and liability to duty is attracted. Etymologically the word manufacture properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314 ).12. These aspects were highlighted in Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai (2005 (1) SCC 385 ). The stand of leaned counsel for the respondents that the levy is under two circumstances i.e. (i) on the buying and selling of notified agricultural produce when brought within the State into the market area (ii) on the notified agriculture produce when brought from within the State or from outside the State into the market areas. The case at hand, it is submitted, relates to the second category.13. Had it been only that the goods notified are brought into the market area to be covered by the second category then the stand of the respondents would have been acceptable. But the further condition it must be "used for processing" shows that the emphasis is on end-user. In this case that makes the difference. Therefore, the appellant is correct in its stand that levy on the notified agriculture produce being brought within market area where end-user is manufacture does not attract levy of market fee. Learned counsel for the respondents submitted that by accepting the interpretation suggested by them, the object of the statute shall be achieved. 14. When the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, Courts are bound to give effect to that meaning irrespective of consequences. (See: State of Jharkhand v. Govind Singh AIR 2005 SC 294 , Nathi Devi v. Radha Devi Gupta (2005 (2) SCC 271 ). 15. In Sussex Peerage case (1844) 11 CI&F 85, at page 143 Tindal C.J. observed as follows: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver." When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. 16. As observed in Nathi Devis case (supra) if the words used are capable of one construction, only then, it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the sections of the Act.
### Response:
1
### Explanation:
in the sense that the thing produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties. (See Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. M/s. Coco Fibres (1992 Supp. (1) SCC 290). Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end result of one or more processes through which the original commodities are made to pass. The nature and extent of processing may vary from one class to another. There may be several stages of processing, a different kind of processing at each stage. With each process suffered the original commodity experiences a change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473 ). Manufacture is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418 ).10. The prevalent and generally accepted test to ascertain that there is manufacture is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between processing and manufacture, results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488 ).11. To put differently, the test to determine whether a particular activity amounts to manufacture or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes manufacture takes place and liability to duty is attracted. Etymologically the word manufacture properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314 ).12. These aspects were highlighted in Kores India Ltd., Chennai v. Commissioner of Central Excise, Chennai (2005 (1) SCC 385 ). The stand of leaned counsel for the respondents that the levy is under two circumstances i.e. (i) on the buying and selling of notified agricultural produce when brought within the State into the market area (ii) on the notified agriculture produce when brought from within the State or from outside the State into the market areas. The case at hand, it is submitted, relates to the second category.13. Had it been only that the goods notified are brought into the market area to be covered by the second category then the stand of the respondents would have been acceptable. But the further condition it must be "used for processing" shows that the emphasis is on end-user. In this case that makes the difference. Therefore, the appellant is correct in its stand that levy on the notified agriculture produce being brought within market area where end-user is manufacture does not attract levy of market fee. Learned counsel for the respondents submitted that by accepting the interpretation suggested by them, the object of the statute shall be achieved.As observed in Nathi Devis case (supra) if the words used are capable of one construction, only then, it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly be not given effect to in opposition to the plain language of the sections of the Act.
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Dai-Ichi Karkaria Ltd Vs. Union Of India
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the notification issued under Section 25 of the Customs Act, 1962 is considered. This Court held that power to grant exemption under Section 25 of the Customs Act is a legislative power and a notification issued by the Government thereunder amounts to a piece of subordinate legislation, even then the notification is liable to be questioned on the ground that it is an unreasonable on inasmuch as a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of grounds on which plenary legislation can be challenged; (i) that it does not conform to the statute under which it is made; (ii) that it is contrary to some other statute inasmuch as subordinate legislation must yield to plenary legislation, (iii) that it is unreasonable in the sense that it is manifestly arbitrary. The embargo of arbitrariness is embodied in Article 14 of the Constitution. An enquiry into the vires of delegated legislation must be confined to the ground on which the plenary legislation may be questioned, except that subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice on which administrative action may be questioned. In cases where power vested in the Government is a power which has got to be exercised in public interest, as is the case in the present case, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the constitution. The mere fact that a notification issued under Section 25 of the Customs Act is required to be laid before Parliament under Section 159 of the Customs Act does not make any substantial difference as regards the jurisdiction of the Court to pronounce on its validity. Section 25 of the Customs Act under which notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of public interest. If the Central Government is satisfied that it is necessary in the public interest so to do, it may exempt generally either absolutely or subject to such conditions, goods of any description, from the whole or any part of the customs duty leviable thereon. Power exercisable under Section 25 of the Customs Act is no doubt discretionary, but it is not unrestricted. The pattern of the law imposing customs duties and the manner in which it is operated to a certain extent exposes the citizens who are liable to pay customs duties to the vagaries of executive discretion. While Parliament has imposed duties by enacting the Customs Act and the Customs Tariff Act, 1975, the executive Government is given wide power by Section 25 of the Customs Act to grant exemption from the levy of customs duty. It is ordinarily assumed that while such wide power is given to the Government, it will consider all relevant aspects governing the question whether exemption should be granted or not. 10. Ms. Nisha Bagchi, learned counsel for respondents, relied on Union of India v. Indian Charge Chrome, 1999(112) ELT 753 (S.C.) In this case, however, the law stated in Kasinka Trading & Anr. (supra) is reiterated but there is no plea in the petition that the formation of opinion as to public interest is based on no material or was vitiated by mala fides. In the present case. The position is altogether different. Specific plea has been raised that there is no basis for formation of the opinion as to public interest calling for withdrawal or modification of the exemption already granted. Therefore, the principle stated in that case has no application to the facts of the present case. 11. Relying upon a decision in Collector of Central Excise v., R.M.D.C. Press Pvt. Ltd., 1997(92) ELT 29 (S.C.), it was further submitted by the learned counsel for the respondents that public interest should be presumed to exist even when the judgment under appeal does not expressly refer to public interest which moved the respondents to curtail the period of exemption. When a specific contention had been raised regarding non-existence of public interest in curtailing the period of exemption, we fail to understand as to how this decision can be of any assistance to the learned counsel. 12. In the present case, by issuing different set of notifications and granting exemption at different stages and limiting only to the extent of 75% for the period from December 30, 1986 to September 10, 1987 and for the reasons stated earlier in the manner set out in the counter affidavit clearly indicate that the Government has not taken into account all the relevant factors while issuing the impugned notifications reducing the exemption to 25% for the aforesaid period. We may state that the Government had failed to discharge its statutory obligation while issuing the impugned notifications. Justifications offered, to say the least, is far too halve to be accepted. The reasons set out does not carry the case of the State Government further at all. 13. However, Ms. Nisha Bagchi sought to distinguish the different notifications by stating that different notifications issued subsequently are in respect of different commodities and it is always open to the Government to change its policy. Undoubtedly it is so, but those factors per se would not discharge the burden of the Government in establishing as to what public interest governed the Government in reducing the extent if exemption. 14. We have already held that the Government has failed to discharge that burden. In the result, we have no hesitation in quashing the amended notifications which are applicable for the period from December 30, 1986 to September 10, 1987 reducing the extent of exemption. The notification issued earlier on September 10, 1982 and modified in 1983 shall be effective till September 10, 1987. The appellants should be subject to duty only in accordance with those notifications issued under the Customs Act.
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1[ds]In the present case, by issuing different set of notifications and granting exemption at different stages and limiting only to the extent of 75% for the period from December 30, 1986 to September 10, 1987 and for the reasons stated earlier in the manner set out in the counter affidavit clearly indicate that the Government has not taken into account all the relevant factors while issuing the impugned notifications reducing the exemption to 25% for the aforesaid period. We may state that the Government had failed to discharge its statutory obligation while issuing the impugned notifications. Justifications offered, to say the least, is far too halve to be accepted. The reasons set out does not carry the case of the State Government further atMs. Nisha Bagchi sought to distinguish the different notifications by stating that different notifications issued subsequently are in respect of different commodities and it is always open to the Government to change its policy. Undoubtedly it is so, but those factors per se would not discharge the burden of the Government in establishing as to what public interest governed the Government in reducing the extent ifhave already held that the Government has failed to discharge that burden. In the result, we have no hesitation in quashing the amended notifications which are applicable for the period from December 30, 1986 to September 10, 1987 reducing the extent of exemption. The notification issued earlier on September 10, 1982 and modified in 1983 shall be effective till September 10, 1987. The appellants should be subject to duty only in accordance with those notifications issued under the Customs Act.
| 1 | 3,100 | 294 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the notification issued under Section 25 of the Customs Act, 1962 is considered. This Court held that power to grant exemption under Section 25 of the Customs Act is a legislative power and a notification issued by the Government thereunder amounts to a piece of subordinate legislation, even then the notification is liable to be questioned on the ground that it is an unreasonable on inasmuch as a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of grounds on which plenary legislation can be challenged; (i) that it does not conform to the statute under which it is made; (ii) that it is contrary to some other statute inasmuch as subordinate legislation must yield to plenary legislation, (iii) that it is unreasonable in the sense that it is manifestly arbitrary. The embargo of arbitrariness is embodied in Article 14 of the Constitution. An enquiry into the vires of delegated legislation must be confined to the ground on which the plenary legislation may be questioned, except that subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice on which administrative action may be questioned. In cases where power vested in the Government is a power which has got to be exercised in public interest, as is the case in the present case, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the constitution. The mere fact that a notification issued under Section 25 of the Customs Act is required to be laid before Parliament under Section 159 of the Customs Act does not make any substantial difference as regards the jurisdiction of the Court to pronounce on its validity. Section 25 of the Customs Act under which notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of public interest. If the Central Government is satisfied that it is necessary in the public interest so to do, it may exempt generally either absolutely or subject to such conditions, goods of any description, from the whole or any part of the customs duty leviable thereon. Power exercisable under Section 25 of the Customs Act is no doubt discretionary, but it is not unrestricted. The pattern of the law imposing customs duties and the manner in which it is operated to a certain extent exposes the citizens who are liable to pay customs duties to the vagaries of executive discretion. While Parliament has imposed duties by enacting the Customs Act and the Customs Tariff Act, 1975, the executive Government is given wide power by Section 25 of the Customs Act to grant exemption from the levy of customs duty. It is ordinarily assumed that while such wide power is given to the Government, it will consider all relevant aspects governing the question whether exemption should be granted or not. 10. Ms. Nisha Bagchi, learned counsel for respondents, relied on Union of India v. Indian Charge Chrome, 1999(112) ELT 753 (S.C.) In this case, however, the law stated in Kasinka Trading & Anr. (supra) is reiterated but there is no plea in the petition that the formation of opinion as to public interest is based on no material or was vitiated by mala fides. In the present case. The position is altogether different. Specific plea has been raised that there is no basis for formation of the opinion as to public interest calling for withdrawal or modification of the exemption already granted. Therefore, the principle stated in that case has no application to the facts of the present case. 11. Relying upon a decision in Collector of Central Excise v., R.M.D.C. Press Pvt. Ltd., 1997(92) ELT 29 (S.C.), it was further submitted by the learned counsel for the respondents that public interest should be presumed to exist even when the judgment under appeal does not expressly refer to public interest which moved the respondents to curtail the period of exemption. When a specific contention had been raised regarding non-existence of public interest in curtailing the period of exemption, we fail to understand as to how this decision can be of any assistance to the learned counsel. 12. In the present case, by issuing different set of notifications and granting exemption at different stages and limiting only to the extent of 75% for the period from December 30, 1986 to September 10, 1987 and for the reasons stated earlier in the manner set out in the counter affidavit clearly indicate that the Government has not taken into account all the relevant factors while issuing the impugned notifications reducing the exemption to 25% for the aforesaid period. We may state that the Government had failed to discharge its statutory obligation while issuing the impugned notifications. Justifications offered, to say the least, is far too halve to be accepted. The reasons set out does not carry the case of the State Government further at all. 13. However, Ms. Nisha Bagchi sought to distinguish the different notifications by stating that different notifications issued subsequently are in respect of different commodities and it is always open to the Government to change its policy. Undoubtedly it is so, but those factors per se would not discharge the burden of the Government in establishing as to what public interest governed the Government in reducing the extent if exemption. 14. We have already held that the Government has failed to discharge that burden. In the result, we have no hesitation in quashing the amended notifications which are applicable for the period from December 30, 1986 to September 10, 1987 reducing the extent of exemption. The notification issued earlier on September 10, 1982 and modified in 1983 shall be effective till September 10, 1987. The appellants should be subject to duty only in accordance with those notifications issued under the Customs Act.
### Response:
1
### Explanation:
In the present case, by issuing different set of notifications and granting exemption at different stages and limiting only to the extent of 75% for the period from December 30, 1986 to September 10, 1987 and for the reasons stated earlier in the manner set out in the counter affidavit clearly indicate that the Government has not taken into account all the relevant factors while issuing the impugned notifications reducing the exemption to 25% for the aforesaid period. We may state that the Government had failed to discharge its statutory obligation while issuing the impugned notifications. Justifications offered, to say the least, is far too halve to be accepted. The reasons set out does not carry the case of the State Government further atMs. Nisha Bagchi sought to distinguish the different notifications by stating that different notifications issued subsequently are in respect of different commodities and it is always open to the Government to change its policy. Undoubtedly it is so, but those factors per se would not discharge the burden of the Government in establishing as to what public interest governed the Government in reducing the extent ifhave already held that the Government has failed to discharge that burden. In the result, we have no hesitation in quashing the amended notifications which are applicable for the period from December 30, 1986 to September 10, 1987 reducing the extent of exemption. The notification issued earlier on September 10, 1982 and modified in 1983 shall be effective till September 10, 1987. The appellants should be subject to duty only in accordance with those notifications issued under the Customs Act.
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SHRI KSHETRIMAYUM BIREN SINGH Vs. THE HON?BLE SPEAKER, MANIPUR LEGISLATIVE ASSEMBLY & ORS. ETC.
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High Court however affirmed the order passed by the Speaker and dismissed said writ petitions. The point in issue was considered by the High Court as under; [43] The Speaker heard all the Disqualification Cases jointly on 18.06.2020 and after taking into consideration all the pleadings, newspaper reports, the photographs and DVDs in connection with the Disqualification Cases, passed the impugned order disqualifying the writ petitioner for being a member of the Manipur Legislative Assembly under Para 2(1)(a) of the Tenth Schedule of the Constitution of India. While passing the said impugned order dated 18.06.2020, the Speaker had relied on the news reports published by many printed and electronic medias showing the writ petitioner participating in the reception ceremony organised by the BJP and being facilitated by the BJP leaders. Since the writ petitioner failed to deny the existence and authenticity of the said news reports, the Speaker was satisfied that an inference can be made that the writ petitioner had voluntarily given up the membership of INC and accordingly the Speaker disqualified the writ petitioner for being a member of the Manipur Legislative Assembly in terms of Para 2(1)(a) of the Tenth Schedule of the Constitution of India read with Article 191(2) of the Constitution of India. [44] On examining the photographs/videos and newspaper reports filed in connection with the Disqualification Cases, the existence of which was never denied by the writ petitioner, we are of the considered view that there were enough materials before the Speaker to draw an inference that the writ petitioner had voluntarily given up his membership of the Indian National Congress (INC). Further, in the absence of any specific denial by the writ petitioner to the allegations made against him in the disqualification cases especially the existence of the newspapers and the authenticity of the reports made therein, we do not find any infirmity which should vitiate the order passed by the Speaker disqualifying the writ petitioner and we find no ground or justification for interfering with the impugned order passed by the Speaker. [45] On examination of the records of the Disqualification cases which were placed before us, we found that the Disqualification Cases were filed on 07.12.2017, 17.02.2018 & 26.11.2018 and notice was issued on 10.07.2019. Soon after receiving notice, the present writ petitioner entered appearance through his counsel. Instead of filing written statement, the writ petitioner filed miscellaneous applications raising preliminary objections of the maintainability of the said disqualification cases. Only after dismissal of the preliminary objections raised by the writ petitioner in his applications, the writ petitioner filed his written statement in the Disqualification Case on 12.06.2020. By an order dated 06.06.2020 passed by the Speaker all the disqualification cases were fixed on 17.06.2020 for further proceedings, however, on the direction of the Speaker, the date of hearing of the Disqualification Cases was rescheduled to 22.06.2020 on account of the illness of the Speaker. However, the hearing of the disqualification cases were again preponed from 22.06.2020 to 18.06.2020 at 1:00 p.m. by issuing a notice dated 17.06.2020 in view of the improvement of the health condition of the Speaker and also in view of the urgent need for early disposal of the disqualification cases as directed by the Honble Supreme Court in its judgment and order dated 21.01.2020 passed in the case of KeishamMeghachandra Singh Vs. Hon ble Speaker ? Manipur Legislative Assembly reported in AIR Online 2020 SC 54, wherein the Speaker has been directed to decide the disqualification petitions pending before him within a period of 4(four) weeks from the date on which the judgment of the Apex Court was intimated to him. [46] We are also in agreement with the submissions advanced by the counsel for the respondents that the writ petitioner and his counsel have knowledge in time about the issuance of the said notice dated 17.06.2020 preponing the date of hearing of the disqualification cases for the simple reason that the said notice dated 17.06.2020 had been challenged before this Court by filing WP(C) No. 298 of 2020 on 18.06.2020 by the counsel of the writ petitioner representing one of the MLAs against whom disqualification cases was pending. Despite having knowledge about the preponement of the hearing of the disqualification cases, the writ petitioner and his counsel choose not to appear before the Tribunal and accordingly the Speaker heard and disposed of the disqualification cases in their absence. 16. In these appeals challenging the decision of the High Court, we have heard Mr. S.K. Bhattacharya, learned Advocate in support of the appeals and Mr. Dama Seshadri Naidu, learned Senior Advocate for the Speaker. The original applicants who had preferred Disqualification Applications, according to the report of the Registry, were duly served but have not chosen to file any appearance in these matters. 17. With the assistance of the learned counsel, we have gone through the pleadings exchanged between the parties and the facts on record. It is quite clear that the petitions were directed to be taken up for hearing on 22.06.2020 but were preponed to 18.06.2020. 18. Without going into the question whether such preponement was to the knowledge of the parties, the fact of the matter is that the record does not indicate any urgency why the matters were preponed from 22.06.2020 to 18.06.2020. It is also a matter of record that none of the parties was represented before the Speaker. As submitted by the learned counsel who had appeared on behalf of the Speaker, which submission was noted by the High Court in its order dated 18.06.2020, the matter required leading of evidence. 19. The questions - whether mere reporting in the newspapers could be taken as sufficient proof of voluntarily giving up of the membership of a political party and, whether the matters require leading of evidence, had to be gone into by the Speaker. In our view, the essential features of the matter demanded leading of evidence as well as giving adequate opportunity to the parties to present their viewpoint.
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1[ds]17. With the assistance of the learned counsel, we have gone through the pleadings exchanged between the parties and the facts on record. It is quite clear that the petitions were directed to be taken up for hearing on 22.06.2020 but were preponed to 18.06.2020.18. Without going into the question whether such preponement was to the knowledge of the parties, the fact of the matter is that the record does not indicate any urgency why the matters were preponed from 22.06.2020 to 18.06.2020. It is also a matter of record that none of the parties was represented before the Speaker. As submitted by the learned counsel who had appeared on behalf of the Speaker, which submission was noted by the High Court in its order dated 18.06.2020, the matter required leading of evidence.19. The questions - whether mere reporting in the newspapers could be taken as sufficient proof of voluntarily giving up of the membership of a political party and, whether the matters require leading of evidence, had to be gone into by the Speaker. In our view, the essential features of the matter demanded leading of evidence as well as giving adequate opportunity to the parties to present their viewpoint.
| 1 | 2,608 | 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:
High Court however affirmed the order passed by the Speaker and dismissed said writ petitions. The point in issue was considered by the High Court as under; [43] The Speaker heard all the Disqualification Cases jointly on 18.06.2020 and after taking into consideration all the pleadings, newspaper reports, the photographs and DVDs in connection with the Disqualification Cases, passed the impugned order disqualifying the writ petitioner for being a member of the Manipur Legislative Assembly under Para 2(1)(a) of the Tenth Schedule of the Constitution of India. While passing the said impugned order dated 18.06.2020, the Speaker had relied on the news reports published by many printed and electronic medias showing the writ petitioner participating in the reception ceremony organised by the BJP and being facilitated by the BJP leaders. Since the writ petitioner failed to deny the existence and authenticity of the said news reports, the Speaker was satisfied that an inference can be made that the writ petitioner had voluntarily given up the membership of INC and accordingly the Speaker disqualified the writ petitioner for being a member of the Manipur Legislative Assembly in terms of Para 2(1)(a) of the Tenth Schedule of the Constitution of India read with Article 191(2) of the Constitution of India. [44] On examining the photographs/videos and newspaper reports filed in connection with the Disqualification Cases, the existence of which was never denied by the writ petitioner, we are of the considered view that there were enough materials before the Speaker to draw an inference that the writ petitioner had voluntarily given up his membership of the Indian National Congress (INC). Further, in the absence of any specific denial by the writ petitioner to the allegations made against him in the disqualification cases especially the existence of the newspapers and the authenticity of the reports made therein, we do not find any infirmity which should vitiate the order passed by the Speaker disqualifying the writ petitioner and we find no ground or justification for interfering with the impugned order passed by the Speaker. [45] On examination of the records of the Disqualification cases which were placed before us, we found that the Disqualification Cases were filed on 07.12.2017, 17.02.2018 & 26.11.2018 and notice was issued on 10.07.2019. Soon after receiving notice, the present writ petitioner entered appearance through his counsel. Instead of filing written statement, the writ petitioner filed miscellaneous applications raising preliminary objections of the maintainability of the said disqualification cases. Only after dismissal of the preliminary objections raised by the writ petitioner in his applications, the writ petitioner filed his written statement in the Disqualification Case on 12.06.2020. By an order dated 06.06.2020 passed by the Speaker all the disqualification cases were fixed on 17.06.2020 for further proceedings, however, on the direction of the Speaker, the date of hearing of the Disqualification Cases was rescheduled to 22.06.2020 on account of the illness of the Speaker. However, the hearing of the disqualification cases were again preponed from 22.06.2020 to 18.06.2020 at 1:00 p.m. by issuing a notice dated 17.06.2020 in view of the improvement of the health condition of the Speaker and also in view of the urgent need for early disposal of the disqualification cases as directed by the Honble Supreme Court in its judgment and order dated 21.01.2020 passed in the case of KeishamMeghachandra Singh Vs. Hon ble Speaker ? Manipur Legislative Assembly reported in AIR Online 2020 SC 54, wherein the Speaker has been directed to decide the disqualification petitions pending before him within a period of 4(four) weeks from the date on which the judgment of the Apex Court was intimated to him. [46] We are also in agreement with the submissions advanced by the counsel for the respondents that the writ petitioner and his counsel have knowledge in time about the issuance of the said notice dated 17.06.2020 preponing the date of hearing of the disqualification cases for the simple reason that the said notice dated 17.06.2020 had been challenged before this Court by filing WP(C) No. 298 of 2020 on 18.06.2020 by the counsel of the writ petitioner representing one of the MLAs against whom disqualification cases was pending. Despite having knowledge about the preponement of the hearing of the disqualification cases, the writ petitioner and his counsel choose not to appear before the Tribunal and accordingly the Speaker heard and disposed of the disqualification cases in their absence. 16. In these appeals challenging the decision of the High Court, we have heard Mr. S.K. Bhattacharya, learned Advocate in support of the appeals and Mr. Dama Seshadri Naidu, learned Senior Advocate for the Speaker. The original applicants who had preferred Disqualification Applications, according to the report of the Registry, were duly served but have not chosen to file any appearance in these matters. 17. With the assistance of the learned counsel, we have gone through the pleadings exchanged between the parties and the facts on record. It is quite clear that the petitions were directed to be taken up for hearing on 22.06.2020 but were preponed to 18.06.2020. 18. Without going into the question whether such preponement was to the knowledge of the parties, the fact of the matter is that the record does not indicate any urgency why the matters were preponed from 22.06.2020 to 18.06.2020. It is also a matter of record that none of the parties was represented before the Speaker. As submitted by the learned counsel who had appeared on behalf of the Speaker, which submission was noted by the High Court in its order dated 18.06.2020, the matter required leading of evidence. 19. The questions - whether mere reporting in the newspapers could be taken as sufficient proof of voluntarily giving up of the membership of a political party and, whether the matters require leading of evidence, had to be gone into by the Speaker. In our view, the essential features of the matter demanded leading of evidence as well as giving adequate opportunity to the parties to present their viewpoint.
### Response:
1
### Explanation:
17. With the assistance of the learned counsel, we have gone through the pleadings exchanged between the parties and the facts on record. It is quite clear that the petitions were directed to be taken up for hearing on 22.06.2020 but were preponed to 18.06.2020.18. Without going into the question whether such preponement was to the knowledge of the parties, the fact of the matter is that the record does not indicate any urgency why the matters were preponed from 22.06.2020 to 18.06.2020. It is also a matter of record that none of the parties was represented before the Speaker. As submitted by the learned counsel who had appeared on behalf of the Speaker, which submission was noted by the High Court in its order dated 18.06.2020, the matter required leading of evidence.19. The questions - whether mere reporting in the newspapers could be taken as sufficient proof of voluntarily giving up of the membership of a political party and, whether the matters require leading of evidence, had to be gone into by the Speaker. In our view, the essential features of the matter demanded leading of evidence as well as giving adequate opportunity to the parties to present their viewpoint.
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State of Karnataka Vs. Krishnaji Srinivas Kulkarni and Others
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to hold the lands. Sub-section (1) expressly mandates that "no person other than a person cultivating land personally" shall be entitled to hold land. In other words, a person be it owner or a tenant, but be in possession and personally cultivating the land has been statutorily permitted to hold the land. The holding of the landowner is subject to the ceiling under Section 66. The company etc. was prohibited to hold land. A duty has been imposed by sub-section (2) of Section 79-B to furnish within 90 days, to the Tehsildar having jurisdiction a declaration concerning the land held by it in the prescribed manner. In other words, the company is enjoined to make the declaration. "On marking such a declaration" that the specified land was held by it, sub-section (3) provides the procedure for inquiry. On compliance thereto and submission of a report after the prescribed inquiry, by the Tehsildar, the Deputy Commissioner, he has been empowered to declare by the notification that such land "shall vest in the State Government free from all encumbrances" and take possession thereof in the prescribed manner. The definition of holder under Section 2(11) of the Land Revenue Act undoubtedly defines, to mean "in lawful possession of land, whether such possession is actual or not". We are not so much concerned with the lawful possession or possession of a tenant holding over for the purpose of interpreting the provisions of the Act. Section 6, as seen earlier, specifically declares that despite the expiry of lease by efflux of time, the tenancy would not stand terminated and that, therefore, the possession of the tenant/company statutorily remains to be juridical possession. The phrase "holder" of the land in Section 79-B must be construed from that perspective. The contra-contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the civil court has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant5. In Bhawanji Lakhamshi v. Himatlal Jamnadas Dani ( 1972 (1) SCC 388 : 1972 (2) SCR 890 ) the facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the rent to the lessor. The leases were determined by issue of notice under Section 106 of the Transfer of Property Act and the suit was filed for decree of eviction on the ground of personal requirement. One of the defences was that after the lease was determined the lessor accepted the rent. Therefore, as tenant holding over he was entitled to the protection of Section 13 of the Bombay Rent Act. That was negatived by all the courts and decree for eviction was granted. This Court held that the act of holding over, after expiry of the lease, does not create a tenancy of any kind. After he continued with the consent of the landlord he is tenant at sufferance and without consent he is not a tenant holdings over. Under Section 116 of Transfer of Property Act the assent of the landlord for the continuance of the possession after the lease was determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to continue the tenancy. The ratio therein has no application to the facts of this case. In M. C. Chockalingam v. V. Manickavasagam ( 1974 (1) SCC 48 : 1974 (2) SCR 143 ) the question therein was whether the lessee of a cinema theatre, after the expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this Court held that by the language of Rule 3 it is implicit that the owner is having a title to the property if he can satisfy the licensing authority that the tenant, though was in possession, his possession was not lawful, but litigious possession and he is not entitled to the renewal of the licence. Lawful possession cannot be established without a concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless his consent becomes under special law, irrelevant. Lawful possession is not litigious possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person who is wrongly or forcefully dispossessed from it. Therefore, the ratio in the above decision also is not of any assistance to the respondents. It is also equally well settled law that of the expiry of the lease of the landlord, the rent of the landlord continues to receive without protest, he acquiesced to the continuance in possession by the lessee and unless he is lawfully ejected his possession cannot be held to be unlawful. 6. As seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B(2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B(3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B(3) of the Act. The demised 600 acres land held by the company stood vested in the State free of encumbrances
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1[ds]We are not so much concerned with the lawful possession or possession of a tenant holding over for the purpose of interpreting the provisions of the Act. Section 6, as seen earlier, specifically declares that despite the expiry of lease by efflux of time, the tenancy would not stand terminated and that, therefore, the possession of the tenant/company statutorily remains to be juridical possession. The phrase "holder" of the land in Section 79-B must be construed from that perspective. The contra-contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the civil court has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant5. In Bhawanji Lakhamshi v. Himatlal Jamnadas Dani ( 1972 (1) SCC 388 : 1972 (2) SCR 890 ) the facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the rent to the lessor. The leases were determined by issue of notice under Section 106 of the Transfer of Property Act and the suit was filed for decree of eviction on the ground of personal requirement. One of the defences was that after the lease was determined the lessor accepted the rent. Therefore, as tenant holding over he was entitled to the protection of Section 13 of the Bombay Rent Act. That was negatived by all the courts and decree for eviction was granted. This Court held that the act of holding over, after expiry of the lease, does not create a tenancy of any kind. After he continued with the consent of the landlord he is tenant at sufferance and without consent he is not a tenant holdings over. Under Section 116 of Transfer of Property Act the assent of the landlord for the continuance of the possession after the lease was determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to continue the tenancy. The ratio therein has no application to the facts of this case. In M. C. Chockalingam v. V. Manickavasagam ( 1974 (1) SCC 48 : 1974 (2) SCR 143 ) the question therein was whether the lessee of a cinema theatre, after the expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this Court held that by the language of Rule 3 it is implicit that the owner is having a title to the property if he can satisfy the licensing authority that the tenant, though was in possession, his possession was not lawful, but litigious possession and he is not entitled to the renewal of the licence. Lawful possession cannot be established without a concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless his consent becomes under special law, irrelevant. Lawful possession is not litigious possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person who is wrongly or forcefully dispossessed from it. Therefore, the ratio in the above decision also is not of any assistance to the respondents. It is also equally well settled law that of the expiry of the lease of the landlord, the rent of the landlord continues to receive without protest, he acquiesced to the continuance in possession by the lessee and unless he is lawfully ejected his possession cannot be held to beAs seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B(2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B(3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B(3) of the Act. The demised 600 acres land held by the company stood vested in the State free ofKarnataka Land Reforms Act, 1961, Act 10 of 1962 (for short the Act) was amended by Amendment Act 1 of 1974 (for short the Amendment Act). The latter came into effect from March 1, 1974. Sectionof the Act prohibits holding of agricultural land by certain persons.(1)(b) declares that with effect from the date of the commencement of the Amendment Act, it shall not be lawful for a company to hold any land.(2) thereof mandates every such company to furnish to the Tehsildar having jurisdiction over the land, a declaration containing the particulars of such land and such other prescribed particulars. Under(3) thereto the Tehsildar after inquiry made in the prescribed manner should send the statement to the Deputy commissioner who declares, by notification that, "such land shall vest in the State Government free from all encumbrances".(4) gives right to the owner of the land payment of compensation prescribed in Section 72. Thesubmitted a declaration, though purported to be under Section 66, but on the facts it must be in under SectionThe Tehsildar after conducting the inquiry and giving opportunity to the respondents submitted the declaration to the Deputy Commissioner who published in the prescribed manner. Thus 600 acres of demised lands stood vested in the State free from all encumbrances. The respondents challenged the action in the writ petitions contending that as on March 1, 1974 the company was not holding the demised land as a tenant. The company, therefore, was incompetent to file any declaration under Section 66 and it cannot be treated to be under SectionIts possession is not lawful and that, therefore, the land does not stand vested in the State. The company was not a holder under SectionThe landowners are holder of the lands. The High Court in the impugned order rightly held that the impugned order was without authority of law, being outside the purview of Sectionof the Act and the ownership of the respondents, however, was not declared
| 1 | 2,511 | 1,243 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
to hold the lands. Sub-section (1) expressly mandates that "no person other than a person cultivating land personally" shall be entitled to hold land. In other words, a person be it owner or a tenant, but be in possession and personally cultivating the land has been statutorily permitted to hold the land. The holding of the landowner is subject to the ceiling under Section 66. The company etc. was prohibited to hold land. A duty has been imposed by sub-section (2) of Section 79-B to furnish within 90 days, to the Tehsildar having jurisdiction a declaration concerning the land held by it in the prescribed manner. In other words, the company is enjoined to make the declaration. "On marking such a declaration" that the specified land was held by it, sub-section (3) provides the procedure for inquiry. On compliance thereto and submission of a report after the prescribed inquiry, by the Tehsildar, the Deputy Commissioner, he has been empowered to declare by the notification that such land "shall vest in the State Government free from all encumbrances" and take possession thereof in the prescribed manner. The definition of holder under Section 2(11) of the Land Revenue Act undoubtedly defines, to mean "in lawful possession of land, whether such possession is actual or not". We are not so much concerned with the lawful possession or possession of a tenant holding over for the purpose of interpreting the provisions of the Act. Section 6, as seen earlier, specifically declares that despite the expiry of lease by efflux of time, the tenancy would not stand terminated and that, therefore, the possession of the tenant/company statutorily remains to be juridical possession. The phrase "holder" of the land in Section 79-B must be construed from that perspective. The contra-contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the civil court has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant5. In Bhawanji Lakhamshi v. Himatlal Jamnadas Dani ( 1972 (1) SCC 388 : 1972 (2) SCR 890 ) the facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the rent to the lessor. The leases were determined by issue of notice under Section 106 of the Transfer of Property Act and the suit was filed for decree of eviction on the ground of personal requirement. One of the defences was that after the lease was determined the lessor accepted the rent. Therefore, as tenant holding over he was entitled to the protection of Section 13 of the Bombay Rent Act. That was negatived by all the courts and decree for eviction was granted. This Court held that the act of holding over, after expiry of the lease, does not create a tenancy of any kind. After he continued with the consent of the landlord he is tenant at sufferance and without consent he is not a tenant holdings over. Under Section 116 of Transfer of Property Act the assent of the landlord for the continuance of the possession after the lease was determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to continue the tenancy. The ratio therein has no application to the facts of this case. In M. C. Chockalingam v. V. Manickavasagam ( 1974 (1) SCC 48 : 1974 (2) SCR 143 ) the question therein was whether the lessee of a cinema theatre, after the expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this Court held that by the language of Rule 3 it is implicit that the owner is having a title to the property if he can satisfy the licensing authority that the tenant, though was in possession, his possession was not lawful, but litigious possession and he is not entitled to the renewal of the licence. Lawful possession cannot be established without a concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless his consent becomes under special law, irrelevant. Lawful possession is not litigious possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person who is wrongly or forcefully dispossessed from it. Therefore, the ratio in the above decision also is not of any assistance to the respondents. It is also equally well settled law that of the expiry of the lease of the landlord, the rent of the landlord continues to receive without protest, he acquiesced to the continuance in possession by the lessee and unless he is lawfully ejected his possession cannot be held to be unlawful. 6. As seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B(2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B(3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B(3) of the Act. The demised 600 acres land held by the company stood vested in the State free of encumbrances
### Response:
1
### Explanation:
of the civil court has been ousted and conferred on the Tribunals under the Act. There is no forum created under the Act to decide the rights of the landowner and the erstwhile tenant5. In Bhawanji Lakhamshi v. Himatlal Jamnadas Dani ( 1972 (1) SCC 388 : 1972 (2) SCR 890 ) the facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the rent to the lessor. The leases were determined by issue of notice under Section 106 of the Transfer of Property Act and the suit was filed for decree of eviction on the ground of personal requirement. One of the defences was that after the lease was determined the lessor accepted the rent. Therefore, as tenant holding over he was entitled to the protection of Section 13 of the Bombay Rent Act. That was negatived by all the courts and decree for eviction was granted. This Court held that the act of holding over, after expiry of the lease, does not create a tenancy of any kind. After he continued with the consent of the landlord he is tenant at sufferance and without consent he is not a tenant holdings over. Under Section 116 of Transfer of Property Act the assent of the landlord for the continuance of the possession after the lease was determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to continue the tenancy. The ratio therein has no application to the facts of this case. In M. C. Chockalingam v. V. Manickavasagam ( 1974 (1) SCC 48 : 1974 (2) SCR 143 ) the question therein was whether the lessee of a cinema theatre, after the expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this Court held that by the language of Rule 3 it is implicit that the owner is having a title to the property if he can satisfy the licensing authority that the tenant, though was in possession, his possession was not lawful, but litigious possession and he is not entitled to the renewal of the licence. Lawful possession cannot be established without a concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless his consent becomes under special law, irrelevant. Lawful possession is not litigious possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person who is wrongly or forcefully dispossessed from it. Therefore, the ratio in the above decision also is not of any assistance to the respondents. It is also equally well settled law that of the expiry of the lease of the landlord, the rent of the landlord continues to receive without protest, he acquiesced to the continuance in possession by the lessee and unless he is lawfully ejected his possession cannot be held to beAs seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B(2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B(3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B(3) of the Act. The demised 600 acres land held by the company stood vested in the State free ofKarnataka Land Reforms Act, 1961, Act 10 of 1962 (for short the Act) was amended by Amendment Act 1 of 1974 (for short the Amendment Act). The latter came into effect from March 1, 1974. Sectionof the Act prohibits holding of agricultural land by certain persons.(1)(b) declares that with effect from the date of the commencement of the Amendment Act, it shall not be lawful for a company to hold any land.(2) thereof mandates every such company to furnish to the Tehsildar having jurisdiction over the land, a declaration containing the particulars of such land and such other prescribed particulars. Under(3) thereto the Tehsildar after inquiry made in the prescribed manner should send the statement to the Deputy commissioner who declares, by notification that, "such land shall vest in the State Government free from all encumbrances".(4) gives right to the owner of the land payment of compensation prescribed in Section 72. Thesubmitted a declaration, though purported to be under Section 66, but on the facts it must be in under SectionThe Tehsildar after conducting the inquiry and giving opportunity to the respondents submitted the declaration to the Deputy Commissioner who published in the prescribed manner. Thus 600 acres of demised lands stood vested in the State free from all encumbrances. The respondents challenged the action in the writ petitions contending that as on March 1, 1974 the company was not holding the demised land as a tenant. The company, therefore, was incompetent to file any declaration under Section 66 and it cannot be treated to be under SectionIts possession is not lawful and that, therefore, the land does not stand vested in the State. The company was not a holder under SectionThe landowners are holder of the lands. The High Court in the impugned order rightly held that the impugned order was without authority of law, being outside the purview of Sectionof the Act and the ownership of the respondents, however, was not declared
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Naveen Kumar Vs. Vijay Kumar & Others
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reasoning, that the registered owner was not liable.11. The subsequent decision of a Bench of three judges of this Court in HDFC Bank Limited v Reshma (supra) involved an agreement of hypothecation. The Tribunal held the financier of the vehicle to jointly and severally liable together with the owner on the ground that it was under an obligation to ensure that the borrower had not neglected to get the vehicle insured. The High Court had dismissed the appeal filed by the Bank against the order of the Tribunal holding it liable together with the owner. In the appeal before this Court, Justice Dipak Misra (as the learned Chief Justice then was) adverted during the course of the judgment to the principles laid down by this Court in several earlier decisions, including of this Court (Mohan Benefit (P) Ltd. v. Kachraji Raymalji, (1997) 9 SCC 103 : 1997 SCC (Cri) 610; Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 : (2008) 1 SCC (Civ) 270 : (2008) 1 SCC (Cri) 209 ; Mukesh K. Tripathi v. LIC : (2004) 8 SCC 387 : 2004 SCC (L&S) 1128, Ramesh Mehta v. Sanwal Chand Singhvi (2004) 5 SCC 409 , State of Maharashtra v. Indian Medical Assn. (2002) 1 SCC 589 : 5 SCEC 217, Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal : (1988) 1 ACC 204 : (1988) 2 TAC 25 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai : 1995 SCC OnLine Guj 167 : AIR 1996 Guj 51 ; Godavari Finance Co. v. Degala Satyanarayanamma, (2008) 5 SCC 107 : (2008) 2 SCC (Cri) 531; Pushpa v. Shakuntala, (2011) 2 SCC 240 : (2011) 1 SCC (Civ) 399 : (2011) 1 SCC (Cri) 682 ; T.V. Jose [(2001) 8 SCC 748 : 2002 SCC (Cri) 94 ] , SCC p. 51, para 10; U.P. SRTC v. Kulsum, (2011) 8 SCC 142 : (2011) 4 SCC (Civ) 66 : (2011) 3 SCC (Cri) 376; Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251.”).Noticing that the case before the court involved a hypothecation agreement, this Court held:“22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2.”(id at page 693)Since the Second respondent was in control and possession of the vehicle this Court held that the High Court was in error in fastening the liability on the financier. The failure of the Second respondent to effect full payment for obtaining an insurance cover was neither known to the financier nor was there any collusion on its part. Consequently, the High Court was held to be in error in fastening liability on the financier.12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ‘owner’ in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ‘owner’ in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ‘owner’ of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
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1[ds]12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expressionin Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as theHowever, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expressionin Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was theof the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13.The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle.In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
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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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reasoning, that the registered owner was not liable.11. The subsequent decision of a Bench of three judges of this Court in HDFC Bank Limited v Reshma (supra) involved an agreement of hypothecation. The Tribunal held the financier of the vehicle to jointly and severally liable together with the owner on the ground that it was under an obligation to ensure that the borrower had not neglected to get the vehicle insured. The High Court had dismissed the appeal filed by the Bank against the order of the Tribunal holding it liable together with the owner. In the appeal before this Court, Justice Dipak Misra (as the learned Chief Justice then was) adverted during the course of the judgment to the principles laid down by this Court in several earlier decisions, including of this Court (Mohan Benefit (P) Ltd. v. Kachraji Raymalji, (1997) 9 SCC 103 : 1997 SCC (Cri) 610; Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 : (2008) 1 SCC (Civ) 270 : (2008) 1 SCC (Cri) 209 ; Mukesh K. Tripathi v. LIC : (2004) 8 SCC 387 : 2004 SCC (L&S) 1128, Ramesh Mehta v. Sanwal Chand Singhvi (2004) 5 SCC 409 , State of Maharashtra v. Indian Medical Assn. (2002) 1 SCC 589 : 5 SCEC 217, Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 , National Insurance Co. Ltd. v. Durdadahya Kumar Samal : (1988) 1 ACC 204 : (1988) 2 TAC 25 (Ori) and Bhavnagar Municipality v. Bachubhai Arjanbhai : 1995 SCC OnLine Guj 167 : AIR 1996 Guj 51 ; Godavari Finance Co. v. Degala Satyanarayanamma, (2008) 5 SCC 107 : (2008) 2 SCC (Cri) 531; Pushpa v. Shakuntala, (2011) 2 SCC 240 : (2011) 1 SCC (Civ) 399 : (2011) 1 SCC (Cri) 682 ; T.V. Jose [(2001) 8 SCC 748 : 2002 SCC (Cri) 94 ] , SCC p. 51, para 10; U.P. SRTC v. Kulsum, (2011) 8 SCC 142 : (2011) 4 SCC (Civ) 66 : (2011) 3 SCC (Cri) 376; Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251.”).Noticing that the case before the court involved a hypothecation agreement, this Court held:“22. In the present case, as the facts have been unfurled, the appellant Bank had financed the owner for purchase of the vehicle and the owner had entered into a hypothecation agreement with the Bank. The borrower had the initial obligation to insure the vehicle, but without insurance he plied the vehicle on the road and the accident took place. Had the vehicle been insured, the insurance company would have been liable and not the owner. There is no cavil over the fact that the vehicle was the subject of an agreement of hypothecation and was in possession and control of Respondent 2.”(id at page 693)Since the Second respondent was in control and possession of the vehicle this Court held that the High Court was in error in fastening the liability on the financier. The failure of the Second respondent to effect full payment for obtaining an insurance cover was neither known to the financier nor was there any collusion on its part. Consequently, the High Court was held to be in error in fastening liability on the financier.12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ‘owner’ in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression ‘owner’ in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was the ‘owner’ of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
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12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expressionin Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as theHowever, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expressionin Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First respondent was theof the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.13.The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle.In Dr T V Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.
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Dee Vee Projects Ltd Vs. The Government of Maharashtra and ors
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Tax, MIDC-Nagpur-502 Admn.State. This order does not give any reasons and, therefore, there is no question of any reflection therein of the authority passing the order on being satisfied about the necessity of passing it. When the first requirement of rule 86-A is of, having reasons to believe and it has manifestly been not followed, the impugned order would have to be treated as bad in law. The second requirement regarding recording of reasons in writing, it is obvious, is also followed in breach. The impugned order is, therefore, an instance of arbitrary exercise of the power under rule 86-A and so it is illegal. 40. The impugned order is illegal for another reason, as well. It does not specify the amount to the extent to which the ECL has been blocked. As explained by us earlier, the power under rule 86-A does not enable the authority to impose a blanket prohibition upon utilization of credit available in the ECL. It permits the authority to disallow debit of only that amount which has been found to be fraudulently or wrongly availed of and, therefore, if the credit amount available in the ECL is more than the amount found to be fraudulently or erroneously availed of, the entire credit amount amount lying in the ECL cannot be subjected to the disability of rule 86-A. The disallowance has to be restricted to only such amount which is equivalent to the amount found to be fraudulently or erroneously availed of in respect of which the credit has accumulated in the ECL, and it is only debit of this amount to the ECL which can be forbidden and not the debit of the entire amount lying in credit in the ECL. The impugned order has the effect of imposing complete ban on utilisation of any credit amount and not just the credit amount found to be fraudulently or erroneously and, therefore, it is illegal for this additional reason. 41. The learned AGP for respondent nos.1, 2 and 4 and learned counsel for respondent no.3 have placed reliance upon certain correspondence between these authorities which revealed as to what weighed with the authority for issuing a direction to respondent no.1 via respondent no.4 for blocking of the ECL. These communications are of dates 27.1.2021 and 25.6.2021. The communication dated 27.1.2021 did not give any reasons as to why the ECL of the petitioner was merited and it only said that as certain material was found during the course of investigation made against the petitioner, the blocking was found necessary. Therefore, this communication would not help further the case of the respondents. The communication dated 25.6.2021 does no better. By this communication respondent no.4 directed respondent no.1 to take necessary action at her end by blocking of ITC of listed tax payers as per rule-86-A. Respondent no.1 complying with the direction, passed the impugned order of blocking of the ECL on 1.7.2021. In the reply filed by respondent no.1, it is admitted that the blocking of ECL was done by her because there was direction received by her from respondent no.3 via respondent no.4 regarding blocking of the ECL as per rule 86-A. This admission shows that there was an abdication of authority conferred upon respondent no.1 regarding exercise of power under rule 86-A which ought to have been exercised by her after applying her mind independently in the matter, but that was not to be. The surrender of the authority made by her was in favour of respondent no.3, although respondent no.3, on its part had only recommended for blocking of the ECL. This shows that exercise of power under rule 86-A made by respondent no.1 was not because she was independently satisfied about the need for blocking the ECL but, was due to the fact that she felt compelled to obey the command of her superior. In other words, the order was passed virtually by respondent no.3. This is not the manner in which the law expects the power under rule 86-A to be exercised. When a thing is directed to be done in a particular manner, it must be done in that manner or not at all is the well established principle of administrative law (see Chandra Kishor Jha V/s. Mahavir Prasad, AIR 1999 SC 3558 and Dhananjay Reddy V/s. State of Karnataka, AIR 2001 SC 1512 ), which has not been followed here. This is one more reason for us to hold that the impugned order is arbitrary and illegal. 42. For the reasons stated hereinabove, we find that the impugned order is arbitrary and illegal and it must be quashed and set aside. Question no.3 is answered accordingly. 43. As regards fourth question, we must say here that it is not necessary for us to answer it in specific terms as the impugned order itself has been found to be not worthy of upholding. The necessity for examining justification for issuance of the impugned order would have arisen, had it been held that the impugned order is sustainable in law on the touchstone of due process but requires consideration on merits, which is not the case here. 44. The petitioner has also sought issuance of direction to the Union of India for coming out with appropriate guidelines for exercise of the power available under rule 86-A. As of now, we do not think that there is any need for this Court to issue a direction as desired by the petitioner. We are of the opinion that rule 86-A has been adequately framed by the rule making authority so as to take care of any possible misuse of the power. The authority has ensured that sufficient safeguards against the misuse of power are embedded in rule 86-A itself and accordingly the rule has been framed. We have already explained in detail the meaning, extent, necessity and manner of operation of these safeguards and, therefore, we do not think that anything more than what we have done here is required to be done.
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1[ds]20. Reading the provision, we can see that appeal under section 107(1) can be filed against a decision or order passed under Central GST Act or State GST Act or the Union Territory GST Act by an adjudicating authority. It is also clear that this provision does not include any decision or order passed under the Rules framed under Central GST Act or any other Rules. In this case, the respondents maintain that the impugned order and action has been passed and taken under rule 86-A of the Rules, 2017. Therefore, we find that no appeal remedy could have been available to the petitioner under this provision.22. A careful perusal of the provision would show that the revisional power conferred upon the Commissioner is in respect of an order passed by an adjudicating authority and the expression, adjudicating authority, as defined in section 2(4) excludes the Revisional Authority from its ambit, as rightly submitted by Shri Mirza, learned counsel for the petitioner. It is, therefore, clear that the petitioner could not have filed any revision petition before the Commissioner under section 107(2) of the CGST Act. In any case, no authority, Commissioner here, can be a revisional authority against his own order, though he can be a reviewing authority against his own order, if power of review is expressly conferred upon him.23. Thus, neither under sub-section (1) nor under subsection (2) of section 107, the petitioner could have found any succour for resolution of its grievance and, therefore, we reject the contention of the respondents that this petition is not maintainable due to availability of an alternate remedy.We find no merit in the contention as this rule itself shows that the power can be exercised not only by the Commissioner but also by an officer authorised by him in this behalf and only restriction is that the delegate of the Commissioner cannot be an officer who is below the rank of an Assistant Commissioner. In this case, there is no dispute about the fact that respondent no.1, a Deputy Commissioner holding the rank above an Assistant Commissioner, was duly authorised by the Commissioner to initiate action under section 86-A of the CGST Act. The contention is, therefore, rejected.27. The effect of the power exercised under this provision of law, is that of an embargo placed upon utilisation of the amount of credit or refund of the unutilised amount of credit. It is quite like maintaining status quo in respect of the amount of credit available in the ECL. This effect is not akin to seizure of the credit amount for its consequent appropriation for realisation of tax dues as would happen in the case of attachment of property. While amount of credit lying in the ECL could be considered to be the property of the tax payer, if viewed from perspective of ownership or entitlement of the tax payer over the same, not allowing use of such property for discharging liability to pay tax, penalty etc. under section 49 of the Central GST or not permitting its refund to the tax payer cannot seen as seizure or attachment of the property. In attachment of property, the custody of the property is, actually or symbolically, taken over by the department with a view to protect the property from being transferred or altered in character, so that it can be appropriated, if the need arises, for realising tax dues. But, in case of blocking of ECL under rule 86-A, the custody of the property remains with the tax prayer but disability is created on his capacity to utilise it or receive the refund of unutilised credit. The power of provisional attachment of the property under section 83 of the CGST Act can be exercised only after initiation of any proceeding under Chapters XII, XIV and XV, which relate to assessment, inspection, search, seizure, arrest and demands and recovery of tax not paid or shortly paid or erroneously paid. For invoking the power under rule 86-A, it is not necessary that proceeding under any of the said Chapters is initiated and it can be exercised, when conditions prescribed therein are met. It is thus clear that the power under rule 86-A is quite distinct from the power under section 83 and, therefore, any order passed under rule 86-A cannot be treated as the order amounting to the provisional attachment of property under section 83 of CGST Act.28. For the aforestated reasons, the argument made by learned counsel for the petitioner that the impugned order is no less than an order for provisional attachment under section 83 is rejected and the first question is answered in terms that the impugned order could not be understood as the order amounting to provisional attachment of property under section 83 of the CGST Act and, therefore, further question regarding following of the procedure prescribed in section 83 would not arise.However, as we have found that the impugned order could not be considered as the one passed in exercise of power under section 83 of the CGST Act, in our respectful submission, the case of Radha Krishan Industries (supra) would render no assistance to the petitioner.30. Coming to the second and third questions, which can be answered together, we are of the view that a closure examination of the provisions made in rule 86-A would throw much required light on these questions.31. A careful perusal of the above referred provisions would show that there is no specific mention therein about the blocking of the ECL and what is stated is that the Competent Authority may not allow debit of an amount equivalent to an amount determined or found to be fraudulently or wrongly shown as credit available in the ECL for discharge of any liability under Section 49 or any equivalent refund of an unutilised amount of credit in the ECL. Disallowing debit of an amount to the ECL is nothing but blocking of the ECL. But, such blocking of the ECL cannot be for an amount which is more than the amount found to be fraudulently or wrongly availed of. The answer to the second question, therefore, is that rule 86-A of Rules, 2017 does permit dis-allowance of debit of an amount to the electronic credit ledger only to the extent of fraudulent or wrong availment of credit in the ECL and such disallowance can be done through blocking of the ECL to the extent of the amount fraudulently or wrongly shown as lying in credit in the ECL.32. Coming to the third question, we would say that rule 86-A has two pre-requisites to be fulfilled before the power of disallowing of debit of suitable amount to the Electronic Credit Ledger or blocking of ECL to the extent of the amount fraudulently or wrongly availed of is exercised. The first pre-requisite is of the Competent Authority or the Commissioner having been satisfied on the basis of material available before him that blocking of ECL for the afore-stated reasons is necessary. The second pre-requisite is of recording the reasons in writing for such an exercise of the power. From the language used in rule 86-A it becomes very clear that unless both these pre-requisites are fulfilled, the authority cannot disallow the debit of the determined amount to the ECL or cannot block the ECL even to the extent of amount found to be fraudulently or wrongly availed of.34. In the case of Maneka Gandhi Vs. Union of India : AIR 1978 SC 597 , it was held that the principle of reasonableness which legally as well as philosophically, is an essential element of equity or non-arbitrariness and it pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. Fair and reasonable exercise of power would be there only when the power is exercised in the manner prescribed in the provision of law conferring the power and for the purpose for achievement of which it exists. This would underline the importance of existence of reasons to believe that there is fraudulent or erroneous availment of credit standing in the ECL. In other words, the power under rule 86-A cannot be exercised unless there is a subjective satisfaction made on the basis of objective material by the authority.35. As regards the following of principles of natural justice, the law is now well settled. In cases involving civil consequences, these principles would be required to be followed although, the width, amplitude and extent of their applicability may differ from case to case depending upon the nature of the power to be exercised and the speed with which the power is to be used. Usually, it would suppose prior hearing before its exercise (See Swadeshi Cotton Mills Vs. Union of India : (1981) 1 SCC 664 and Nirma Industries Limited and another Vs. Securities and Exchange Board of India : (2013) 8 SCC 20) . But, it is not necessary that such prior hearing would be granted in each and every case. Sometimes, the power may be conferred to meet some urgency and in such a case expedition would be the hallmark of the power. In such a case, it would be practically impossible to give prior notice or prior hearing and here the rule of natural justice would expect that at least a post decisional hearing or remedial hearing is granted so that the damage done due to irrational exercise of power, if any, can be removed before things get worse. In Smt. Maneka Gandhi (supra), it was laid down that where there is an emergent situation requiring immediate action, giving of prior notice or opportunity to be heard may not be practicable but a full remedial hearing would have to be granted. The power conferred upon the Commissioner under rule 86-A is one of such kind. It has civil consequences though for a limited period not exceeding one year and has an element of urgency which perhaps explains why the rule does not expressly speak of any show cause notice or opportunity of hearing before the ECL is blocked. Of course, in order to guard against arbitrary exercise of power, the rule creates certain checks which are found in the twin requirements explained by us earlier. But, in our view, that may not be enough, given the nature of power, and what settled principles of law tell us in the matter. They would, in such a case, require this Court to read into the provisions of rule 86-A something not expressly stated therein, and so, we find that post decisional or remedial hearing would have to be granted to the person affected by blocking of his ECL. We may add that such post decisional hearing may be granted within a reasonable period of time which may not be beyond two weeks from the date of the order blocking the ECL. After such hearing is granted, the authority may proceed to confirm the order for such period as may be permissible under the rule or revoke the order, as the case may be.36. The second pre-requisite of rule 86-A is of recording of reasons in writing. It comes with the use of the word may, which, in our opinion, needs to be construed as conveying an imperative command of the rule maker, and that means, reasons must be recorded in writing in each and every case. This is because of the fact that any order which brings to bear adverse consequences upon the person against whom the order is passed, must disclose the reasons for it so that the person affected thereby would know why he is being made to suffer or otherwise he would not be able to seek appropriate redressal of his grievance arising from such an order. Right to know the reasons behind an administrative order having civil consequences is a well embedded principle forming part of doctrine of fair play which runs like a thread through the warp and weft of the fabric of our Constitutional order made up by Articles 14 and 21 of the Constitution of India. In the case of Andhra Bank V/s. Official Liquidator : (2005) 3 SCJ 762 , the Apex Court has held that an unreasoned order does not subserve the doctrine of fair play. It then follows that the word, may used before the words, for the reasons recorded in writing signifies nothing but a mandatory duty of the competent authority to record reasons in writing.37. There is another reason which we would like to state here to support our conclusion just made. The power under rule 86-A is of enabling kind and it is conferred upon the Commissioner for public benefit and, therefore, it is in the nature of a public duty. Essential attribute of a public duty is that it is exercised only when the circumstances so demand and not when they do not justify its performance (see Commissioner of Police, Bombay Vs. Gordhandas Bhanji : AIR (39) 1952 Supreme Court 16). It would then mean that justification for exercise of the power has to be found by the authority by making a subjective satisfaction on the basis of objective material and such satisfaction must be reflected in the reasons recorded in writing while exercising the power.38. Examined in the light of above principles of law, the provisions made in rule 86-A would require the Competent Authority to first satisfy itself, on the basis of objective material, that there are reasons to believe that credit of input tax available in ECL has been fraudulently or wrongly utilised and secondly to record these reasons in writing before the order of disallowing debit of requisite amount to the ECL or requisite refund of unutilised credit, is passed or otherwise the order of blocking the ECL under rule 86-A would be unsustainable in the eye of law. This is also the view taken in the case of M/s HEC India LLP Vs. Commissioner of GST and Central Excise Audit-II and another (WA No.2341 of 2021 dated 16.09.2021), which commends to us. Then, as stated earlier, a remedial hearing followed by confirmation or revocation of the order would be necessary..This order does not give any reasons and, therefore, there is no question of any reflection therein of the authority passing the order on being satisfied about the necessity of passing it. When the first requirement of rule 86-A is of, having reasons to believe and it has manifestly been not followed, the impugned order would have to be treated as bad in law. The second requirement regarding recording of reasons in writing, it is obvious, is also followed in breach. The impugned order is, therefore, an instance of arbitrary exercise of the power under rule 86-A and so it is illegal.40. The impugned order is illegal for another reason, as well. It does not specify the amount to the extent to which the ECL has been blocked. As explained by us earlier, the power under rule 86-A does not enable the authority to impose a blanket prohibition upon utilization of credit available in the ECL. It permits the authority to disallow debit of only that amount which has been found to be fraudulently or wrongly availed of and, therefore, if the credit amount available in the ECL is more than the amount found to be fraudulently or erroneously availed of, the entire credit amount amount lying in the ECL cannot be subjected to the disability of rule 86-A. The disallowance has to be restricted to only such amount which is equivalent to the amount found to be fraudulently or erroneously availed of in respect of which the credit has accumulated in the ECL, and it is only debit of this amount to the ECL which can be forbidden and not the debit of the entire amount lying in credit in the ECL. The impugned order has the effect of imposing complete ban on utilisation of any credit amount and not just the credit amount found to be fraudulently or erroneously and, therefore, it is illegal for this additional reason.These communications are of dates 27.1.2021 and 25.6.2021. The communication dated 27.1.2021 did not give any reasons as to why the ECL of the petitioner was merited and it only said that as certain material was found during the course of investigation made against the petitioner, the blocking was found necessary. Therefore, this communication would not help further the case of the respondents. The communication dated 25.6.2021 does no better. By this communication respondent no.4 directed respondent no.1 to take necessary action at her end by blocking of ITC of listed tax payers as per rule-86-A. Respondent no.1 complying with the direction, passed the impugned order of blocking of the ECL on 1.7.2021. In the reply filed by respondent no.1, it is admitted that the blocking of ECL was done by her because there was direction received by her from respondent no.3 via respondent no.4 regarding blocking of the ECL as per rule 86-A. This admission shows that there was an abdication of authority conferred upon respondent no.1 regarding exercise of power under rule 86-A which ought to have been exercised by her after applying her mind independently in the matter, but that was not to be. The surrender of the authority made by her was in favour of respondent no.3, although respondent no.3, on its part had only recommended for blocking of the ECL. This shows that exercise of power under rule 86-A made by respondent no.1 was not because she was independently satisfied about the need for blocking the ECL but, was due to the fact that she felt compelled to obey the command of her superior. In other words, the order was passed virtually by respondent no.3. This is not the manner in which the law expects the power under rule 86-A to be exercised. When a thing is directed to be done in a particular manner, it must be done in that manner or not at all is the well established principle of administrative law (see Chandra Kishor Jha V/s. Mahavir Prasad, AIR 1999 SC 3558 and Dhananjay Reddy V/s. State of Karnataka, AIR 2001 SC 1512 ), which has not been followed here. This is one more reason for us to hold that the impugned order is arbitrary and illegal.42. For the reasons stated hereinabove, we find that the impugned order is arbitrary and illegal and it must be quashed and set aside. Question no.3 is answered accordingly.43. As regards fourth question, we must say here that it is not necessary for us to answer it in specific terms as the impugned order itself has been found to be not worthy of upholding. The necessity for examining justification for issuance of the impugned order would have arisen, had it been held that the impugned order is sustainable in law on the touchstone of due process but requires consideration on merits, which is not the case here.44. The petitioner has also sought issuance of direction to the Union of India for coming out with appropriate guidelines for exercise of the power available under rule 86-A. As of now, we do not think that there is any need for this Court to issue a direction as desired by the petitioner. We are of the opinion that rule 86-A has been adequately framed by the rule making authority so as to take care of any possible misuse of the power. The authority has ensured that sufficient safeguards against the misuse of power are embedded in rule 86-A itself and accordingly the rule has been framed. We have already explained in detail the meaning, extent, necessity and manner of operation of these safeguards and, therefore, we do not think that anything more than what we have done here is required to be done.
| 1 | 7,637 | 3,593 |
### 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:
Tax, MIDC-Nagpur-502 Admn.State. This order does not give any reasons and, therefore, there is no question of any reflection therein of the authority passing the order on being satisfied about the necessity of passing it. When the first requirement of rule 86-A is of, having reasons to believe and it has manifestly been not followed, the impugned order would have to be treated as bad in law. The second requirement regarding recording of reasons in writing, it is obvious, is also followed in breach. The impugned order is, therefore, an instance of arbitrary exercise of the power under rule 86-A and so it is illegal. 40. The impugned order is illegal for another reason, as well. It does not specify the amount to the extent to which the ECL has been blocked. As explained by us earlier, the power under rule 86-A does not enable the authority to impose a blanket prohibition upon utilization of credit available in the ECL. It permits the authority to disallow debit of only that amount which has been found to be fraudulently or wrongly availed of and, therefore, if the credit amount available in the ECL is more than the amount found to be fraudulently or erroneously availed of, the entire credit amount amount lying in the ECL cannot be subjected to the disability of rule 86-A. The disallowance has to be restricted to only such amount which is equivalent to the amount found to be fraudulently or erroneously availed of in respect of which the credit has accumulated in the ECL, and it is only debit of this amount to the ECL which can be forbidden and not the debit of the entire amount lying in credit in the ECL. The impugned order has the effect of imposing complete ban on utilisation of any credit amount and not just the credit amount found to be fraudulently or erroneously and, therefore, it is illegal for this additional reason. 41. The learned AGP for respondent nos.1, 2 and 4 and learned counsel for respondent no.3 have placed reliance upon certain correspondence between these authorities which revealed as to what weighed with the authority for issuing a direction to respondent no.1 via respondent no.4 for blocking of the ECL. These communications are of dates 27.1.2021 and 25.6.2021. The communication dated 27.1.2021 did not give any reasons as to why the ECL of the petitioner was merited and it only said that as certain material was found during the course of investigation made against the petitioner, the blocking was found necessary. Therefore, this communication would not help further the case of the respondents. The communication dated 25.6.2021 does no better. By this communication respondent no.4 directed respondent no.1 to take necessary action at her end by blocking of ITC of listed tax payers as per rule-86-A. Respondent no.1 complying with the direction, passed the impugned order of blocking of the ECL on 1.7.2021. In the reply filed by respondent no.1, it is admitted that the blocking of ECL was done by her because there was direction received by her from respondent no.3 via respondent no.4 regarding blocking of the ECL as per rule 86-A. This admission shows that there was an abdication of authority conferred upon respondent no.1 regarding exercise of power under rule 86-A which ought to have been exercised by her after applying her mind independently in the matter, but that was not to be. The surrender of the authority made by her was in favour of respondent no.3, although respondent no.3, on its part had only recommended for blocking of the ECL. This shows that exercise of power under rule 86-A made by respondent no.1 was not because she was independently satisfied about the need for blocking the ECL but, was due to the fact that she felt compelled to obey the command of her superior. In other words, the order was passed virtually by respondent no.3. This is not the manner in which the law expects the power under rule 86-A to be exercised. When a thing is directed to be done in a particular manner, it must be done in that manner or not at all is the well established principle of administrative law (see Chandra Kishor Jha V/s. Mahavir Prasad, AIR 1999 SC 3558 and Dhananjay Reddy V/s. State of Karnataka, AIR 2001 SC 1512 ), which has not been followed here. This is one more reason for us to hold that the impugned order is arbitrary and illegal. 42. For the reasons stated hereinabove, we find that the impugned order is arbitrary and illegal and it must be quashed and set aside. Question no.3 is answered accordingly. 43. As regards fourth question, we must say here that it is not necessary for us to answer it in specific terms as the impugned order itself has been found to be not worthy of upholding. The necessity for examining justification for issuance of the impugned order would have arisen, had it been held that the impugned order is sustainable in law on the touchstone of due process but requires consideration on merits, which is not the case here. 44. The petitioner has also sought issuance of direction to the Union of India for coming out with appropriate guidelines for exercise of the power available under rule 86-A. As of now, we do not think that there is any need for this Court to issue a direction as desired by the petitioner. We are of the opinion that rule 86-A has been adequately framed by the rule making authority so as to take care of any possible misuse of the power. The authority has ensured that sufficient safeguards against the misuse of power are embedded in rule 86-A itself and accordingly the rule has been framed. We have already explained in detail the meaning, extent, necessity and manner of operation of these safeguards and, therefore, we do not think that anything more than what we have done here is required to be done.
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in the eye of law. This is also the view taken in the case of M/s HEC India LLP Vs. Commissioner of GST and Central Excise Audit-II and another (WA No.2341 of 2021 dated 16.09.2021), which commends to us. Then, as stated earlier, a remedial hearing followed by confirmation or revocation of the order would be necessary..This order does not give any reasons and, therefore, there is no question of any reflection therein of the authority passing the order on being satisfied about the necessity of passing it. When the first requirement of rule 86-A is of, having reasons to believe and it has manifestly been not followed, the impugned order would have to be treated as bad in law. The second requirement regarding recording of reasons in writing, it is obvious, is also followed in breach. The impugned order is, therefore, an instance of arbitrary exercise of the power under rule 86-A and so it is illegal.40. The impugned order is illegal for another reason, as well. It does not specify the amount to the extent to which the ECL has been blocked. As explained by us earlier, the power under rule 86-A does not enable the authority to impose a blanket prohibition upon utilization of credit available in the ECL. It permits the authority to disallow debit of only that amount which has been found to be fraudulently or wrongly availed of and, therefore, if the credit amount available in the ECL is more than the amount found to be fraudulently or erroneously availed of, the entire credit amount amount lying in the ECL cannot be subjected to the disability of rule 86-A. The disallowance has to be restricted to only such amount which is equivalent to the amount found to be fraudulently or erroneously availed of in respect of which the credit has accumulated in the ECL, and it is only debit of this amount to the ECL which can be forbidden and not the debit of the entire amount lying in credit in the ECL. The impugned order has the effect of imposing complete ban on utilisation of any credit amount and not just the credit amount found to be fraudulently or erroneously and, therefore, it is illegal for this additional reason.These communications are of dates 27.1.2021 and 25.6.2021. The communication dated 27.1.2021 did not give any reasons as to why the ECL of the petitioner was merited and it only said that as certain material was found during the course of investigation made against the petitioner, the blocking was found necessary. Therefore, this communication would not help further the case of the respondents. The communication dated 25.6.2021 does no better. By this communication respondent no.4 directed respondent no.1 to take necessary action at her end by blocking of ITC of listed tax payers as per rule-86-A. Respondent no.1 complying with the direction, passed the impugned order of blocking of the ECL on 1.7.2021. In the reply filed by respondent no.1, it is admitted that the blocking of ECL was done by her because there was direction received by her from respondent no.3 via respondent no.4 regarding blocking of the ECL as per rule 86-A. This admission shows that there was an abdication of authority conferred upon respondent no.1 regarding exercise of power under rule 86-A which ought to have been exercised by her after applying her mind independently in the matter, but that was not to be. The surrender of the authority made by her was in favour of respondent no.3, although respondent no.3, on its part had only recommended for blocking of the ECL. This shows that exercise of power under rule 86-A made by respondent no.1 was not because she was independently satisfied about the need for blocking the ECL but, was due to the fact that she felt compelled to obey the command of her superior. In other words, the order was passed virtually by respondent no.3. This is not the manner in which the law expects the power under rule 86-A to be exercised. When a thing is directed to be done in a particular manner, it must be done in that manner or not at all is the well established principle of administrative law (see Chandra Kishor Jha V/s. Mahavir Prasad, AIR 1999 SC 3558 and Dhananjay Reddy V/s. State of Karnataka, AIR 2001 SC 1512 ), which has not been followed here. This is one more reason for us to hold that the impugned order is arbitrary and illegal.42. For the reasons stated hereinabove, we find that the impugned order is arbitrary and illegal and it must be quashed and set aside. Question no.3 is answered accordingly.43. As regards fourth question, we must say here that it is not necessary for us to answer it in specific terms as the impugned order itself has been found to be not worthy of upholding. The necessity for examining justification for issuance of the impugned order would have arisen, had it been held that the impugned order is sustainable in law on the touchstone of due process but requires consideration on merits, which is not the case here.44. The petitioner has also sought issuance of direction to the Union of India for coming out with appropriate guidelines for exercise of the power available under rule 86-A. As of now, we do not think that there is any need for this Court to issue a direction as desired by the petitioner. We are of the opinion that rule 86-A has been adequately framed by the rule making authority so as to take care of any possible misuse of the power. The authority has ensured that sufficient safeguards against the misuse of power are embedded in rule 86-A itself and accordingly the rule has been framed. We have already explained in detail the meaning, extent, necessity and manner of operation of these safeguards and, therefore, we do not think that anything more than what we have done here is required to be done.
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State Of Punjab Vs. M/S.Nestle India Ltd.&Anr
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Such a course would render the mandatory provisions of the enactment meaningless and superfluous. Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the legislature of a State has the power to make laws (Article 162 of the Constitution). The proposition urged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law where the said rule, it is well settled, is not available against a statutory provision. The Sanctity of law and the sanctity of the mandatory requirement of the law cannot be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision of a statute, such act can still be made a foundation for invoking the rule of promissory/ equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority." (p. 657-658) 44. It would appear that these observations are in conflict with the earlier and subsequent pronouncements of the law on promissory estoppel. Chandrasekhara Aiyar, J held that the representation was enforceable despite the accident that the grant was invalid inasmuch as it was contrary to statute. M.P. Sugar Mills (supra) had said that the promise was enforceable against the Government despite the requirement of Article 299 of the Constitution. Similarly, Century Spinning (supra) held that despite the requirement of the statute prescribing the manner and form to grant exemption from payment of octroi, a promise not made in that manner or form could be enforced in equity. Then again in Godfrey Philips (supra), the Court directed an exemption to be granted on the basis of the principles of promissory estoppel even though Rule 8 of the Central Excise Rules 1944 required exemption to be granted by notification. 45. Of course, the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. Such a proposition would not fall foul of our constitutional scheme and public interest. On the other hand, as was observed in Motilal Sugar Mills, case and approved in the subsequent decisions: "It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel." 46. None of these decisions have been considered in ITC Bhadrachalam Paperboards vs. Mandal Revenue Officer (supra) except for a brief reference to Chandrasekhara Aiyar, Js judgment which was explained away as not being an authority for the proposition that even where the Government has to and can act only under and in accordance with a statute - an act done by the Government in violation thereof can be treated as a presentation to found a plea of promissory estoppel. But that is exactly what the learned Judge had said. 47. In any event judicial discipline requires us to follow the decision of the larger Bench (General Manager, Telecome vs. A. Srinivasa Rao and others (1997(8) SCC 767: Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra and others (1998(2) SCC 289). The facts in the present case are similar to those of prevailing in Godfrey Philips (supra). There too, as we have noted earlier, the statutory provisions require exemption to be granted by notification. Nevertheless, the Court having found that the essential pre-requisites for the operation of promissory estoppel had been established, directed the issuance of the exemption notification. 48. The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the states economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1st April 1996 so that the respondents cannot in any event re-adjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet. 49. In the case before us, the power in the State Government to grant exemption under the Act is coupled with the word may - signifying the discretionary nature of the power. We are of the view that the State Governments refusal to exercise its discretion to issue the necessary notification abolishing or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents.
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0[ds]18. The respondents are admittedly dealers within the meaning of the definition of the word under Section 2(d) of the Act. Every dealer is required to pay tax in the manner prescribed under Section 10 which requires furnishing of returns/ declarations by the dealer together with the receipt showing that the full amount of tax due from the dealer under the Act according to such returns had been paid in the prescribed manner. If there is failure to pay the tax in the manner prescribed, the dealer may be liable to pay penalty of a sum upto one and and a half times of the tax payable undern (6) of Section 10. The substance of section 10 has been detailed in Rules 20 to 25 of the Rules. Rule 20 provides for the furnishing of returns either quarterly or monthly. Rule 24 provides for the form in which such returns are to be filed. Rule 25 provides that all returns which are required to be furnished under the Rules shall be signed by the registered dealer or the agent, and shall be sent to the appropriate assessing authority... together with the treasury or bank receipt in proof of payment of the tax due." The Assessing Authority then passes an order of assessment on such return under Section 11 unless he is satisfied that the returns are not correct and complete19. Apart from the power to treat goods otherwise leviable to tax under the Act as tax free under Section 6(2), the State Government has the power under Section 31 to amend Schedule C itself and thereby remove goods from imposition of tax altogether23. The pleas raised by the parties for and against the operation of the doctrine of promissory estoppel are to be considered against the background of these statutory provisionsAlthough possession of the site was made over to the then Municipal Commissioner no formal grant was in fact executed as required by the applicable statute. Acting on the resolution, the Corporation spent considerable sums of money in building and improving the market and was in possession for 70 years during which period no revenue had been paid to or claimed by the Government30. As for its strengths it was said: that the doctrine was not limited only the cases where there was some contractual relationship or otherg legal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made, contractual, administrative or statutory43. Although the view expressed by two Judges in Jitrams case (supra) has been disapproved in Godfrey Phillips (supra), it was ostensibly resuscitated in ITC Bhadrachalam Paperboards vs. Mandal Revenue Officer, A.P. 1996(6) SCC 634. In that case the State Government had the power to remit assessment under section 7 of the Andhra Pradeshl Lands Assessment Act, 1963. Section 11 of that Act provided for exemption to be made by an order of the State Government which was required to be published in the Andhra Pradesh Gazette prior to which the order had to be laid on the table to the Legislature Assembly. The Court construed the provisions of the State Act and came to the conclusion that the nature of power under Section 11 did not amount to delegated legislation but conditional legislation48. The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the states economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1st April 1996 so that the respondents cannot in any eventt the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet49. In the case before us, the power in the State Government to grant exemption under the Act is coupled with the word maysignifying the discretionary nature of the power. We are of the view that the State Governments refusal to exercise its discretion to issue the necessary notification abolishing or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents.
| 0 | 7,488 | 893 |
### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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Such a course would render the mandatory provisions of the enactment meaningless and superfluous. Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the legislature of a State has the power to make laws (Article 162 of the Constitution). The proposition urged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law where the said rule, it is well settled, is not available against a statutory provision. The Sanctity of law and the sanctity of the mandatory requirement of the law cannot be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision of a statute, such act can still be made a foundation for invoking the rule of promissory/ equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority." (p. 657-658) 44. It would appear that these observations are in conflict with the earlier and subsequent pronouncements of the law on promissory estoppel. Chandrasekhara Aiyar, J held that the representation was enforceable despite the accident that the grant was invalid inasmuch as it was contrary to statute. M.P. Sugar Mills (supra) had said that the promise was enforceable against the Government despite the requirement of Article 299 of the Constitution. Similarly, Century Spinning (supra) held that despite the requirement of the statute prescribing the manner and form to grant exemption from payment of octroi, a promise not made in that manner or form could be enforced in equity. Then again in Godfrey Philips (supra), the Court directed an exemption to be granted on the basis of the principles of promissory estoppel even though Rule 8 of the Central Excise Rules 1944 required exemption to be granted by notification. 45. Of course, the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. Such a proposition would not fall foul of our constitutional scheme and public interest. On the other hand, as was observed in Motilal Sugar Mills, case and approved in the subsequent decisions: "It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel." 46. None of these decisions have been considered in ITC Bhadrachalam Paperboards vs. Mandal Revenue Officer (supra) except for a brief reference to Chandrasekhara Aiyar, Js judgment which was explained away as not being an authority for the proposition that even where the Government has to and can act only under and in accordance with a statute - an act done by the Government in violation thereof can be treated as a presentation to found a plea of promissory estoppel. But that is exactly what the learned Judge had said. 47. In any event judicial discipline requires us to follow the decision of the larger Bench (General Manager, Telecome vs. A. Srinivasa Rao and others (1997(8) SCC 767: Commissioner of Income Tax, Bihar vs. Trilok Nath Mehrotra and others (1998(2) SCC 289). The facts in the present case are similar to those of prevailing in Godfrey Philips (supra). There too, as we have noted earlier, the statutory provisions require exemption to be granted by notification. Nevertheless, the Court having found that the essential pre-requisites for the operation of promissory estoppel had been established, directed the issuance of the exemption notification. 48. The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the states economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1st April 1996 so that the respondents cannot in any event re-adjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet. 49. In the case before us, the power in the State Government to grant exemption under the Act is coupled with the word may - signifying the discretionary nature of the power. We are of the view that the State Governments refusal to exercise its discretion to issue the necessary notification abolishing or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents.
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18. The respondents are admittedly dealers within the meaning of the definition of the word under Section 2(d) of the Act. Every dealer is required to pay tax in the manner prescribed under Section 10 which requires furnishing of returns/ declarations by the dealer together with the receipt showing that the full amount of tax due from the dealer under the Act according to such returns had been paid in the prescribed manner. If there is failure to pay the tax in the manner prescribed, the dealer may be liable to pay penalty of a sum upto one and and a half times of the tax payable undern (6) of Section 10. The substance of section 10 has been detailed in Rules 20 to 25 of the Rules. Rule 20 provides for the furnishing of returns either quarterly or monthly. Rule 24 provides for the form in which such returns are to be filed. Rule 25 provides that all returns which are required to be furnished under the Rules shall be signed by the registered dealer or the agent, and shall be sent to the appropriate assessing authority... together with the treasury or bank receipt in proof of payment of the tax due." The Assessing Authority then passes an order of assessment on such return under Section 11 unless he is satisfied that the returns are not correct and complete19. Apart from the power to treat goods otherwise leviable to tax under the Act as tax free under Section 6(2), the State Government has the power under Section 31 to amend Schedule C itself and thereby remove goods from imposition of tax altogether23. The pleas raised by the parties for and against the operation of the doctrine of promissory estoppel are to be considered against the background of these statutory provisionsAlthough possession of the site was made over to the then Municipal Commissioner no formal grant was in fact executed as required by the applicable statute. Acting on the resolution, the Corporation spent considerable sums of money in building and improving the market and was in possession for 70 years during which period no revenue had been paid to or claimed by the Government30. As for its strengths it was said: that the doctrine was not limited only the cases where there was some contractual relationship or otherg legal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made, contractual, administrative or statutory43. Although the view expressed by two Judges in Jitrams case (supra) has been disapproved in Godfrey Phillips (supra), it was ostensibly resuscitated in ITC Bhadrachalam Paperboards vs. Mandal Revenue Officer, A.P. 1996(6) SCC 634. In that case the State Government had the power to remit assessment under section 7 of the Andhra Pradeshl Lands Assessment Act, 1963. Section 11 of that Act provided for exemption to be made by an order of the State Government which was required to be published in the Andhra Pradesh Gazette prior to which the order had to be laid on the table to the Legislature Assembly. The Court construed the provisions of the State Act and came to the conclusion that the nature of power under Section 11 did not amount to delegated legislation but conditional legislation48. The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the states economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1st April 1996 so that the respondents cannot in any eventt the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet49. In the case before us, the power in the State Government to grant exemption under the Act is coupled with the word maysignifying the discretionary nature of the power. We are of the view that the State Governments refusal to exercise its discretion to issue the necessary notification abolishing or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents.
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